/ 31 March 2020

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The state has published a raft of regulations, directions and other guidance in an effort to address the spread of Covid-19, including the use of digital technologies. The  directions published by the minister of communications and digital technologies have significant implications for the exercise of information rights. Some of the provisions are welcomed, but others may need to be urgently revised if these directions are to pass constitutional muster.

During the national lockdown, the Disaster Management Act and all subordinate legislation remain subject to the Constitution.  The declaration of a national disaster —  distinct from a state of emergency —  does not permit the state and its security services to automatically depart from the rights entrenched in the Constitution. These rights serve to ensure that the state operates in an open, transparent and accountable manner.  Any departure must always be reasonable and justifiable in terms of the Constitution’s limitations clause, which includes a consideration as to whether there are less restrictive measures available to achieve the desired purpose of the limitation.

This is especially true in respect of the triad of information rights found in the Constitution, namely freedom of expression, access to information and privacy, which allow the public to receive and impart information, safeguard their privacy, mobilise, critique state action, identify abuses of power, and ensure that public and private sector actors account for their actions or omissions.  Although provisions in the recent directions on ensuring access to the internet should be applauded, those relating to criminalisation of fake news and the surveillance of location-based data may fall short of the limitations analysis.

Access to the internet

A welcome inclusion in the directions is that all service providers of electronic communications networks and services must ensure continued provision of internet and telecommunications services. While other countries are facing the prospect of internet shutdowns in response to the Covid-19 pandemic, South Africa’s intention to ensure that there is consistent access to the internet is a positive step. Access to credible and reliable information is imperative to fighting this pandemic, with the internet ensuring a wide distribution of information to a broad audience. Allied to this, all licensed entities are prevented from effecting any price increases for the duration of the national lockdown, which ensures that operators cannot exploit this opportunity to raise data prices.

The directions also cause the Independent Communications Authority of South Africa (Icasa) to relax spectrum regulations to enable the temporary licensing of all available spectrum bands, including the unassigned high-demand spectrum, for the duration of the Covid-19 national disaster. Although it is unclear how quickly Icasa will be able to act, this does have the potential to increase internet capacity and speeds and lower data costs, albeit as a temporary measure in response to the current crisis.

Criminalisation of fake news

According to earlier regulations published by the department of cooperative governance and traditional affairs, it is now a criminal offence for any person to publish any statement with the intention to deceive about Covid-19, the infection status of any person or any measure taken by the government to address Covid-19. This, in itself, raises concerns, because a new criminal offence has been created by way of regulations, and without the required legislative process, including public consultation.

The directions published by the minister of communications now go further, and provide that electronic communications service licensees, over-the-top services and internet service providers bear the responsibility to remove fake news related to Covid-19 from their platforms “immediately after identified as such”.  This raises a key question: Who must have identified the content as fake news before the relevant entities are required to act?

Further to this, in terms of section 78 of the Electronic Communications and Transactions Act, there is no general obligation on service providers to monitor the data they transmit or store, or to actively seek facts or circumstances indicating an unlawful activity. This provision safeguards against intermediaries being held liable for the content on their platforms, subject to a process of notice and take-down, to ensure the free flow of information from these platforms to the public.

In giving effect to the regulations published by the cooperative governance department and the directions published by the minister of communications on fake news, it is important that due regard is had to the right to freedom of expression. The criminalisation of speech inevitably has a chilling effect on this right, and with the onerous responsibility placed on licensees, over-the-top services and internet service providers, caution must be exercised in ensuring that this does not stifle legitimate debate, commentary or credible information that may be seen as unpalatable. Less restrictive measures may be available, and clarity is needed on how the state intends to operationalise these provisions in a manner compliant with the Constitution.

Surveillance of location-based data

Arguably, the most concerning provision of the directions issued by the minister of communications is what appears to be an increased surveillance power to access location-based data, which geo-locates a mobile device and thus the user of the device.  The regulations state that relevant licensees, as well as “the internet and digital sector in general”, must provide location-based data to the relevant authorities identified to support designated departments to assist and combat the spread of Covid-19. The provision goes no further and contains no requirement of prior consent

Location-based data has the potential to be highly sensitive, and can reveal large tranches of personal information about an individual and those with whom they associate. Worryingly, there is no indication of whether this data will be anonymised or targeted, how such data will be requested, what requirements must be met for such data to be accessed or what safeguards will be in place to access such data, including whether a judicial order will first have to be obtained before the data can be acquired. In the absence of appropriate public consultation, there has also not been an opportunity to ventilate what the exact purpose of this measure is, or whether there is appropriate evidence supporting its efficacy. Indeed, the current public health crisis should not warrant an excessive criminal justice response. It seems inevitable that a re-drafting or clarification will urgently be required, because this provision may constitute a step backwards in relation to privacy rights protections if not appropriately circumscribed and implemented.

The need to be vigilant

South Africa is fortunate to have a constitutional democracy that is deserving of being fiercely guarded. Although there is a clear need for aggressive measures to address the spread of Covid-19, there is simultaneously a need to ensure that there is accountability and transparency in the development and implementation of these measures. With the present rapid expansion of state power, we need to be vigilant to ensure that any measures taken by the state are reasonable, justifiable and constitutionally-compliant, and that increasing regulatory creep does not extend beyond the proclaimed disaster period.  

It falls on the state to ensure that measures taken are constitutional and clearly and cogently drafted to ensure that legal certainty and the rule of law is upheld. The state needs to clarify and re-draft some of these measures to manage the Covid-19 pandemic in the light of South Africa’s Constitution.

Avani Singh and Michael Power are public interest lawyers and directors at ALT Advisory and Power Singh Inc.