To deal with the outbreak of Covid-19, the government has ‘raced’ to enact regulations providing for the restrictions of certain rights – such as freedom of movement – to reduce death and illness and protect public health.

However, while it is crucial to protect public health, the new regulations around ‘fake news’ as well as reporting on other news about the virus amount to unlawful interferences on human rights, argue Fish Hodgson, Nokukhanya Farisè and Justice Mavedzenge, who work for the Africa team of the International Commission of Jurists.

Writing on the Mail & Guardian Online site, the authors point out that the regulations criminalise the publication of any statement made ‘with the intention to deceive any other person’ about Covid-19; about the infection status of any person; or about any measure taken by the government ‘to address Covid-19’.

This offence carries a possible fine or up to six months in prison. The authors say this regulation is over-broad and that it would be almost impossible to enforce.

The authors say that even if the regulation of fake news is legally permissible, the provisions are not necessary to ensure the protection of public health or proportionate.

‘Less restrictive means, including administrative sanctions, are also available to achieve the same aims.’

The regulations, they say, fall short of the requirements international, regional and domestic protections afforded to the right to freedom of expression.

Article 19 of the International Covenant on Civil and Political Rights provides that ‘everyone shall have the right to freedom of expression’ including ‘the freedom to seek, receive and impart information and ideas of all kinds’.

Similarly, Article 9 of the African Charter recognises the right to ‘express and disseminate’ opinions as well as the right to ‘receive information’. Furthermore, the Constitution guarantees the right to freedom of expression.

‘Governments must ensure that laws and policies facilitate rather than prevent free expression. Laws and policies that unduly inhibit or prohibit expression amount to violations of human rights obligations.’

For these reasons, the authors believe that these regulations are unlawful.

Full analysis on the Mail & Guardian Online site