Inside Covid-19: Fake news explosion; A chairman’s retail, logistics insights; Tongaat R5.35bn sale under threat. Ep 33

In episode 33 of Inside Covid 19, South Africa’s leading social media lawyer explains why fake news has been surging in the coronavirus crisis; the chairman of Grindrod and Spar explains why lockdown’s Level 4 needs to be dropped – and urgently; Barloworld uses Covid-19 to try pull out of a R5.35bn potentially life-saving deal for Tongaat; worrying news from New York where previously rare coronavirus-related Kawasaki disease is hitting children; and our partners at Bloomberg argue that the world needs a probe into US president Donald Trump’s often stated theory that Covid-19 started in a Wuhan lab. – Alec Hogg

In the Covid-19 headlines today:

  • Confirmed Covid-19 cases in South Africa hit a record 698 Tuesday, surpassing the previous peak of 663 last Friday. That pushed the total cases over 11,000 with 54% of them in the Western Cape province. No new deaths were reported on Tuesday however, with total mortalities at 206. 13,600 new tests were conducted on the day taking the total to just under 370,000 and a positive-to-test ratio of 3%. Internationally, there were 4.3m confirmed cases by Tuesday evening with just under 290,000 mortalities. The UK recorded 627 new deaths on the day, surpassing the 442 of the United States. Brazil is the first major Southern Hemisphere country to emerge as a hotspot, with 353 deaths yesterday the third highest of any country, taking total mortalities there to just under 12,000.
  • South Africa’s most famous entrepreneurial export Elon Musk, has broken ranks with a mostly compliant US business sector by rebooting his Tesla Motors factory in California in defiance of lockdown rules. In a tweet on Monday, Musk said Tesla is restarting production of its sole US plant “against Alameda County rules…I will be on the line with everyone else… If anyone is arrested, I ask that it be only me.” The factory in Fremont California builds Tesla’s fast-selling Model 3. It employs 10,000 people. After initially baulking at the local County’s order for non-essential businesses to close, it complied on March 23. The decision to re-open follows increasingly strong actions by Tesla including the filing of a lawsuit in the Federal Court asking a judge to allow it to re-open the factory arguing that the Alameda County had overstepped its power. Although there have been arrests of primarily small business owners for defying lockdown laws, including a beauty salon owner in Texas, no corporate leader anywhere near Musk’s status has openly defied the regulations.
  • Embattled Tongaat Hulett has been thrown a Covid-19 curveball by Barloworld, the company which agreed at the end of February to pay R5.35bn for Tongaat’s Starch business. Barloworld has declared a Material Adverse Change as a result of the impact of the virus-related lockdown and wants to either cancel the deal or pay a lower price. The cash has been earmarked for repaying almost half of Tongaat’s heavy debt burden.
  • The Wuhan Institute of Virology, continuously accused of creating Covid-19 by US president Donald Trump, today explained its role in the pandemic through an interview by its deputy director with Beijing-based Technology Daily. Mr Guan Wuxiang said the laboratory, which has studied coronaviruses for a decade, started research into Covid-19 on December 30 after receiving samples of a pneumonia of an unknown cause from the Wuhan Jin-yin-yan Hospital. He said the lab obtained the whole genome sequence which showed it to be a coronavirus by January 11 and immediately submitted it to the World Health Organisation. The deputy director said that together with the China National Biotec Group, the lab has developed a Covid-19 vaccine which entered clinical trials on April 12.

Emma Sadleir is one of the better known lawyers in South Africa. She specialises in digital law. We see your name everywhere. It’s clearly a smart focus to be in right now.

I could never have foreseen it going this way. In the days where I was able to speak at schools, the kids would ask me afterwards: how did you know you wanted to be a social media lawyer. I had to laugh at them and say that when I was at school there was no such thing as social media.

But even this time last year, I couldn’t have foreseen the kinds of issues that we’re seeing now on social media during this pandemic.

Before we go into the pandemic itself, the explosion of social media has really brought all kinds of new questions to society. And presumably because law regulates society in your area.

The main thing and the big transition in my career was when I was at Webber Wentzel with the likes of the brilliant Dario Milo. I was really focusing on media law generally because those were the people who had the power to speak to a lot of people at one time. People like you. It was people in the media business, people who were writing articles for the front page of the newspapers. We can’t underestimate or forget just how quickly this huge digital revolution happened where suddenly every single person with an internet connection became a publisher.

In South Africa as soon as content has been seen by one other person. It doesn’t matter whether you’re speaking on a WhatsApp group to three people or on Twitter to 3m people. We treat that content as if you’d published it on the front page of the newspaper. That means that everybody needs to have a pretty good working understanding about what the laws are. Where does the limit lie to the right to freedom of expression?  There’s a lot of ignorance still even though a lot of us have had this platform –  this voice on social media for about a decade now. There’s still a lot of ignorance. Even with this new fake news offense that came out or the freedom of speech fundamentalists were up in arms. But how is freedom of speech dead. No. It’s not dead, but you know the right to freedom of speech, the right to freedom of expression being a cornerstone to our democracy, is not an absolute right.

How does it work? Basically?

It is an offense that was created under the regulations in the Disaster Management Act. A lot of people that was one of the things that got sort of the freedom of speech absolutists subset was how did this law suddenly overnight exist because normally if you follow any kind of new legislation then it goes through a very long legislative process. We’re still waiting for the data protection laws to be properly affected in South Africa can take a very very long time. Suddenly what happened is that this offense was created. The Disaster Management Act allows for new offences to be created if they are going to be necessary. Those offences to stop the escalation of the disaster. And basically what this criminal offence says is that, if you spread information with the intention to deceive around Covid-19 then you can be prosecuted, found guilty of a criminal offence and sentenced up to 6 months in prison and or a fine. It’s a little bit more long winded than that but that’s the punchline is that if you share information firstly with the intention to deceive and that’s a very important one because if you’re just sharing stuff and you aren’t actually intending to deceive you can’t be prosecuted. It has to relate to Covid-19, not all fake news. It’s got to do with Covid- 19, government’s actions in response to Covid-19 and the covert status of a person.

We’ve seen some arrests with this new criminal offence. Most famous for me was the guy – I call him the bad guy. Stephen Birch, basically released this which went so viral so quickly which basically said that if you submit to government testing you will be contaminated with the virus because all the test kits were contaminated. He was arrested and he’ll be back in court in July.

Today I was sent WhatsApp video of traffic cops arresting a little boy who looked like he wasn’t more than 5 years old at his home in a gated gate. The father went and grabbed his son. So they arrested the father. Now, I don’t know if this is fake news. It’s obviously very tempting to push this out onto social media because it does look like complete abuse of power. But if for instance somebody had staged it and I put that out onto social media then I would be distributing fake news.

It’s a closer call than that. The first is that it sounds utterly outrageous. I haven’t seen the video but the age of criminal capacity in South Africa is 14. Under the age of 10, you cannot be be arrested for a criminal offense. The parents may, depending on what the crime is that has been committed but not under the age of 10. In South Africa under our child Justice Act you cannot commit a criminal offense between the ages of 10 and 14. The law is not quite sure, so they look at that child, how educated is the child, how mature is the child and how they should know the difference between right and wrong. What kind of family do they come from and what kind of school do they go to. From the age of 14, it’s not a question, everybody has criminal capacity and why that’s become such a big issue in my area of law, is that where a teenager for example is involved in spreading fake news or involved in sexting which is dealt with as the distribution of child pornography in South Africa or where they have seriously offended somebody’s dignity and it’s crimen injuria. Maybe that’s cyber bullying or maybe it’s the distribution of naked pictures without consent then we’re actually seeing criminal charges being brought against teenagers.

It’s very unlikely that there was actually an arrest taking place because as I say you cannot arrest somebody under the age of 10. But I think provided we act as responsible social media users, you know for me at the moment because there is just so much fake news going around. I’ve got this mantra, fake news stops with me. I presume that every single thing I receive is fake until I can prove that it’s true. Now where you’re dealing with a video is the evidence is very obviously in the video then I’m happy for people to share it because it’s not just a picture in a vacuum with some blurb which could be completely false. I think that that presumption must be that everything is untrue. If you’re not sure then do your own investigations to check with the main news sites are carrying the story. If you get one of these voice notes without a source my aunties brothers sisters, new best friend as a senior virologist at this place. But keep it on the down low. Then you’ve just got to presume that that’s rubbish and then where there is a source check to see if that source is saying anything.

So for example a couple of weeks ago there was this news that a recipient a scientist in Japan a recipient of a Nobel Prize was saying that if this virus hadn’t been created in a laboratory then he’ll return his Nobel Prize and you would go to a social media channels and see if he’s responding to it. And very quickly that was debunked as fake news. The mantra must be everything you receive is fake until you’ve gone and investigated and proved that it’s true. Now I don’t think you need to do a proper scientific evaluation. But I do think that just some general googling is very very low base. I think that is required. Also we must remember that we’re talking about an intention to deceive with fake news. We have to remember the principle in South Africa of dolus eventualis. If you followed Oscar Pistorius case with any kind of interest, you’ll remember it’s this concept that basically allows for indirect intent. It’s where you reconcile yourself to a possible outcome and proceed in the same way. Maybe I received this WhatsApp and maybe it looks a bit too good to be true or so utterly outrageous. It might be true, it might not be. But let me just forward it anyway that could constitute the reckless disregard for the truth and therefore perhaps qualify as dolus eventualis, in this analysis of intention to deceive.

We sit with a big website like Buzz news, it gets a million people come into it every month. We get an enormous amount of people wanting to help or they think they’re helping but often they’re sending us stuff that on a little bit of investigation is shown to be fake. What’s the message to them to people. I don’t think most humans want to deceive everyone else but by the same token they also seem to like quite a bit of drama. So they’ll pick up something recently in the Italian story. I’m sure you saw that where there was an allegation that a lot of the deaths in Italy were actually not caused by Covid-19 but by something else. How can one pass on some suggestions?

First must be presume everything is untrue until you can prove that it is true. Then you should probably invest some investigate some of these resources out there. So the big ones in South Africa or Africa Check which are super the real $11. There’s a WhatsApp service called what’s crap. Which is great. You can subscribe to the service and they send you a voice note with the main fake news stories. I think we’ve also seen you know it’s also it’s not so apposite for the for the website contributions but we’ve seen some technological introduction as well so for example, Facebook which owns WhatsApp. I don’t know if you’ve noticed, but they’ve introduced this technological response to fake news where you can only forward a message to one contact at a time or if it’s an image you can only forward it to 5 people at a time whereas before you could forward to hundreds of people at a time. And that really is an attempt to slow down the spread of fake news and it’s been incredibly effective.  I don’t know how accurate the statistics are but the articles I’m reading at the moment is that there’s been an 80% decrease in the transmission of fake news as a result of these technological interventions because as a recipient of a piece of news or piece of content I have to one by one go and send it to each of these people instead of just doing a long broadcast list. And that kind of response is really helping as well.

I had a fascinating insight yesterday with Professor Michael Levitt who’s a Nobel Prize winner. The only living South African scientist who won a Nobel Prize. His insight about Twitter is that he said that it is the greatest discussion forum that he’s come across since he was at Cambridge where there were more than two dozen Nobel Prize winners in the unit that he comes from which puts the other side of the story to it. If he’s right and I’m sure he is Twitter. Social media actually has got an enormous amount of good. But how does one determine and you must come across these all the time. What you can believe and what you shouldn’t be?

I think that is the bigger problem, I suppose, is that you can get these echo chambers because it doesn’t matter what crazy view you might have. You’ll find people online with the same views which normalises maybe a crazy view and then it doesn’t feel so crazy anymore.

It ‘s interesting that Michael said that because I find that, there’s more hate on Twitter than on some of the other public platforms. For me, the obvious reason for that is that Twitter whilst maybe not encouraging anonymity certainly allows it whereas a platform which is much more visual like Instagram, for example it really forces people to be who they are because people share photographs.

I do think that, the root of all bullying on social media is anonymity and it’s just a bit of an aside because it is one of my bugbears at the moment is how slow these international companies are to hand over identifying information where there’s been a very obvious abuse of their platforms whether that’s child pornography, child sexual abuse images misappropriation of somebodies image or face or name or identity. These companies should be playing ball with us a lot more and it’s been an interesting extension of Covid-19. And the effect of Covid-19 is that these companies are and I’m talking really about the three big companies, Facebook which owns WhatsApp and Instagram, Alphabet which owns Google, YouTube and Twitter.

We are seeing them taking a bit more responsibility for what’s on their platform and we are seeing these companies removing quite obvious fake news quite quickly. The big news story of the last week on fake news went viral and it absurd YouTube. I’m not sure if you watched it but it was getting literally I think sort of the last I saw it had seven hundred thousand views and a couple of hours and YouTube decided to take it down and all of the big platforms have actually been actively playing a role much more aggressively than we’ve seen in the past in making sure and actually editing and taking editorial control over the content that they’re hosting and making sure that where there is obvious fake news they’re taking steps to remove that fake news. They’ve also most of them certainly on Facebook and Instagram. At the top an alert button with a tab for Covid -19 information. We’re  seeing this little trend that the social media companies are taking to be a little bit more responsible.

On the Data Protection laws, you say that they have stalled or they certainly haven’t gone through as quickly as they would. How are they going to very briefly change the world. We hear so much about how Covid-19 is going to change the world but one would presume that the data protection laws where we are behind other countries would also have that impact.

We’re so behind and it’s such a shame we’re so behind, because we were ready. You know the laws have been around for a long time, at least the draft legislation and it was signed into law a long time ago. You know and every year I write opinions about data protection saying we anticipate an effective date at the end of this year.

I’ve been writing them for about eight years along those lines. All the talk was that on the 1st of April that’s just been so the 1st of April 2020 that President Ramaphosa would sign the law into it because we were waiting for regulations and the formation of the Information Regulator etcetera and make it effective and then there would be one year for compliance. And obviously the president has much bigger issues on his plate at the moment than data protection.

But it is something that we should be thinking about. It’s not just what the law requires. It’s actually best practice and what people do with our personal information in this world where we’re all living online so much more. Where people are looking at data protection in the context of Covid-19 around the tracing technology the government says it’s use it in a lot of international news stories about these apps that people are voluntarily downloading and and using to basically more effectively contact trace to make sure that if you have come into conflict with some that come into contact with somebody who has the virus that you get notified under our data protection laws governments use of this location based information would be much much more regulated at the moment it seems to be a sort of in a database which is only accessed in the case of a positive testing. But the idea that Big Brother has access to our location at all times is making privacy advocates feel very uncomfortable. It’s not a sort of opt in opt out method like in some countries they are using that information. In terms of the law, they are allowed to use that information. I would say it’s probably a valid restriction about democratic rights but it’s just something that could so easily be abused.  It’s something that all privacy advocates are feeling a bit nervous about.

Emma Sadleir, the founder and chief executive of the Digital Law company.