As the global pandemic Covid-19 continues to lead to alarming death rates throughout the world governments have put in place several measures to contain the virus.
One of the major issues around fighting the virus has been the dissemination of accurate, timeous, and useful information about the virus, its effects, and how it spreads.
Misinformation about the virus and alleged vaccines against COVID-19, has given rise to unproductive and unwarranted debates on the state of the pandemic, its spread and impact.
It is therefore not surprising that part of governments’ responses to the pandemic, include laws that among other things, seek to curb such misinformation.
Technological companies such as Facebook and Google are using their platforms to promote the dissemination of accurate information about Covid-19. For example, WhatsApp has limited the number of contacts a user can forward messages to at a given time.
Statutory Instrument (SI) 83 of 2020:
Following the declaration by President Emmerson Mnangagwa of a national lockdown in Zimbabwe, SI 83 of 2020 was enacted and Section 14 of the regulation seeks to address the spread of what is termed “false news.”
The law provides as follows:
“For the avoidance of doubt any person who publishes or communicates false news about any public officer, official or enforcement officer involved with enforcing or implementing the national lockdown in his or her capacity as such, or about any private individual that has the effect of prejudicing the State’s enforcement of the national lockdown, shall be liable for prosecution under Section 31 of the Criminal Law Code (“Publishing or communicating false statements prejudicial to the State”) and liable to the penalty there provided, that is to say a fine up to or exceeding level fourteen or imprisonment for a period not exceeding twenty years or both.”
Zimbabwe is not unique in passing laws that seek to combat the wrongful information relating to Covid-19.
South Africa, for example, has invoked the National Disaster Act to criminalise the publication of any statement through any medium including social media which is intended to deceive any other person about Covid-19, the infection status of any person or any measure taken by the government.
However, an important point of departure between the Zimbabwean law and the misinformation laws from other countries, is that the provisions of Section 14 of SI 83/2020 are aimed at protecting the reputations of individuals who work on behalf of the State to manage this virus in Zimbabwe.
The wording of this provision makes it less about actually reducing the spread of inaccurate information about the virus and more about restricting free expression and fair comment about the State actors involved in the fight against Covid-19.
This provision is based on Section 31 of the Criminal Law Codification and Reform Act which criminalises the publishing or communicating of false statements prejudicial to the State. This is also similar to the problematic, anti-free expression clauses found in Access to Information and Protection of Privacy Act particularly before its 2003 amendment which criminalised among other aspects the publication of ‘falsehoods’ with the possibility of imprisonment for up to 2 years.
These cited provisions contain wide definitions that can easily be used by the State to persecute and silence dissenting voices by criminalising otherwise legitimate, constitutional speech and expression.
In theory, Section 14 of SI 83/2020 may be used to criminalise criticism against the police for human rights violations under the pretext of enforcing the national lockdown.
Since the lockdown, MISA Zimbabwe has recorded more than 15 cases of arrests, harassment and assault of journalists on allegations of operating with an expired accreditation card or for violating the lockdown regulations.
MISA Zimbabwe filed and won an urgent chamber application at the Harare High Court to protest these continued violations and the court granted the requested relief.
MISA Zimbabwe position
MISA Zimbabwe acknowledges that the exercise of rights like freedom of expression, media freedom and access to information can be limited in the interest of public order and public health as well.
However, it is MISA Zimbabwe’s position that such limitations should be within the ambit of the three-pronged test in terms of proportionality, legitimacy, and necessity.
The World Health Organisation has since acknowledged that there is an ‘infodemic’, or overabundance of information, some accurate while some is false and misleading.
This therefore makes it difficult to verify the trustworthiness of sources and authenticity of information. Indeed fake news has the potential to cause public disorder, and in this instance, even the spread of the virus and deaths if not handled appropriately.
MISA Zimbabwe does not condone the spread of misinformation or unverified information that has the potential to cause panic and fear. We therefore urge citizens to verify sources of information and facts before sharing them particularly on social media platforms.
However, fighting this pandemic must not be used as an excuse to crackdown on journalists and the general exercise of freedom of expression.
If not closely monitored, there is a danger that these provisions will be relied on by governments to suppress criticism and the spread of information they deem undesirable thereby curbing transparency and accountability.
The government should therefore come up with clear mechanisms to establish and ascertain pure intention to deceive or cause harm. It should also be clearly proven that a person had knowledge of the falsity of the information that they shared.
The trend in various countries has been that of harassment of journalists and adoption of new laws aimed at suppressing misinformation. In other instances, governments have resorted to use of existing laws to target undesirable content particularly on social media especially in countries such as Egypt, the Philippines and Iran, among others.
Source: MISA Zimbabwe