Assessing digital disinformation complaints – a guide to the guidelines

Posted on Thu, 18 Apr 2019

Disinformation, as well as misinformation and so-called ‘fake news’, during election periods is a scourge that has affected the fairness and credibility of elections in a number of countries around the world. Although not necessarily a new phenomenon, online platforms have amplified the ease and reach of such information.

The digital disinformation complaints process is a measure implemented by the IEC to respond to this challenge. As part of the process, complaints made to the IEC via the Real411 platform are assessed in accordance with the digital disinformation guidelines.

This is a summary of those guidelines.

The process aims to address disinformation online that may negatively impact the freeness, fairness or credibility of the upcoming elections. Importantly, it seeks to give practical effect to section 89(2) of the Electoral Act 73 of 1998 and section 69(2) of the Local Government: Municipal Electoral Act 27 of 2000, which prohibit the publication of any false information with the intention of disrupting or preventing an election, creating hostility or fear in order to influence the conduct or outcome of an election, or influencing the outcome or conduct of an election.

Overarching considerations

The following overarching considerations are borne in mind when assessing a complaint:

• The right to freedom of expression, as contained in section 16 of the Constitution of the Republic of South Africa, 1996 (referred to as the ‘Constitution’) must be respected, protected and promoted during the election period. Any limitation of the right to freedom of expression must be reasonable and justifiable in an open and democratic society, in accordance with section 36 of the Constitution.
• Any measures that are adopted must be cognisant of, and give appropriate effect to, the nuances of speech, and distinguish between disinformation, on the one hand, and other forms of speech such as journalistic, artistic or satirical expression or opinion, on the other.
• Nothing in the process of reviewing complaints is intended as online regulation of content, or purports to create any new regulatory regime.

How does it work?

Complaints received are forwarded to a sub-committee, made up of three persons – with media, legal and technology expertise, acting on a voluntary basis – to review the complaint and make a recommendation to the Commission. Thereafter, the Commission considers the complaint and the recommendation received, and makes a final determination of the appropriate action to be taken.

Once a final determination has been made, the complainant will be notified and the determination made publicly available.

Key questions that guide the assessment of a complaint

• Has the publication complained of occurred online during the election period?
• Does the publication contain false information?
• Is it reasonably likely that the false information will lead to the disruption or prevention of the election, the creation of hostility or fear in order to influence the conduct or outcome of the election, or the outcome or conduct of the election being influenced?

Possible recourse

The types of recourse in response to complaints received may include, for instance:

• determining that no further action is necessary;
• engaging with a registered political party or candidate;
• referring the complaint matter to an appropriate regulatory or industry body with jurisdiction to determine the complaint;
• referring the matter to a relevant stakeholder for assistance;
• referring the matter to a relevant public body for further investigation and/or action;
• approaching the Electoral Court;
• making use of the Commission’s communications channels to share information to counter disinformation and mitigate the harm caused.

It remains at the discretion of the Commission to determine the appropriate recourse to be taken.

Should you wish a full copy of the guidelines, please contact us for more information.

Posted in guidelines