Go ahead and lie – you’ll probably get away with it

In one very specific instance, the spreading of fake news is a serious criminal matter — when it comes to elections. But that is only in theory. In practice it seems that, for knowingly spreading pernicious lies, there are few consequences — other than perhaps having to fob off attempts to solicit a bribe.

In the thick of the August 2016 local government elections, the Independent Electoral Commission (IEC) decried a fake news website that claimed “people had been arrested with large quantities of ballot papers already marked for a specific party”.

That is illegal, the IEC said, and opened a criminal complaint.

The operator of the MzansiVille fake news website said this week: “We received an inbox [message] through Facebook from a guy say- ing he works with the police. He said, ‘If you give me money, we won’t pursue this.’ We told him we took it [the report] down and he must go away.”

MzansiVille was one three sites to publish an article headlined “Two arrested with over 80 000 ballot papers already marked as ANC votes”, which went viral.

Under the Municipal Electoral Act, publishing false information with the intention of “creating hostility or fear in order to influence the conduct or outcome of an election” can carry a jail term of up to 10 years.

This week, the IEC could not provide details on the progress of its criminal complaint.

Lying is a criminal matter only in specific cases, such as lying under oath, said Rohan Isaacs, a director of Norton Rose Fulbright. “We’re pretty sure there are no criminal consequences for the act of spreading fake news itself.”

Depending on the consequences and context, lying could also constitute harassment, but besides that, a victim’s only recourse is a civil claim, such as defamation.

A party with the money and an appetite for litigation can turn to the courts for relief if they believe lies are being told about them, said Verlie Oosthuizen, a partner at Shepstone & Wylie Attorneys, but that might be hard to prove.

If a political party complained that a rival’s approach was costing it votes, said Oosthuizen, the courts are likely to respond: “That’s the whole point of electioneering.”

In 2015, after a battle involving three courts, the Constitutional Court said the Democratic Alliance had not been in breach of electoral law when it sent an SMS to voters reading: “The Nkandla report shows how Zuma stole your money to build his R246-million home.”

The result was three different judgments, one of which found the DA was expressing an opinion and so could not be said to be spreading falsehood and another held that it could be accurate to say that President Jacob Zuma had stolen money, if “stole” was interpreted broadly enough.

But at least the threat of sanction has some effect as a deterrent.

“We actually stay clear of politics stories after that issue,” said the MzansiVille operator. “We don’t publish politics unless we have verified that it is completely true.” —