Posted on 6th Jul 2021
This week two cases point to the real-life, or at least outside of digital real-life, impact of disinformation. The first is about an advert in Cape Town so terrible that the case was actually reported to Real411. It was picked up by one of the amazing Real411 reviewers, Robyn Porteous, who decided to do something about it. The second case we look at this week wasn’t called disinformation, but offers some prescient lessons for where there are gaps in our legal system, a critical case for our Constitutional Court (yes, the Zondo Commission vs Zuma one that has seen former president Jacob Zuma being given a jail sentence).
Let’s discuss the Cape Town advert and why we think it’s a good example of “real life” disinformation and why this is just as important as the digital disinformation we encounter daily. The advert in question was first seen on a billboard alongside the M5 in Cape Town, advertising a company known as “San-I-tize”. In a rather extraordinary effort, the advert uses people’s religious affiliation and classic conspiracy theories to sell a product. The message of the advert — “In Gates you Trust?! In God we trust. No vaccine for us”.
Porteous suggests that “such a company — which the site suggests is a provider of ‘high-quality, properly certified, reputable and reliable supplies’ — should probably be considered a blessing in this time of the pandemic. But not when it comes to the billboard in question.”
Since the launch of Real411 in March 2020, the focus has been on digital offences — content found online that could constitute disinformation, hate speech, incitement to violence or the harassment of journalists. We wouldn’t usually highlight an “offline” example, but in this case, images of the billboard made it onto social media channels and began spreading.
What is important to consider here is that disinformation isn’t only content that we may come across in a post on social media. It is all around us. It filters through conversations we have with friends and family, circulating through communication channels, and in some cases, blatant advertising.
The City of Cape Town responded to the billboard complaint claiming that according to the city’s by-laws, it is in fact illegal, but the damage had already been done. Although the physical advert is now gone, its owners may not be in the clear as there is a good chance that it might be seen by the City of Cape Town as a breach of the Disaster Management Regulations that deal with spreading false information about Covid-19.
Let’s now turn to the other case we want to highlight this week, somewhat more complicated. This example refers to the Constitutional Court judgment which found that Zuma was in contempt of court and was sentenced to 15 months in jail. There is understandably a great deal of controversy about the case and there are many groundbreaking aspects, some already written about here. What’s fascinating for us was how one of the key elements was a focus on attacks against the court. Indeed, the opening paragraph of the judgment includes:
“I pen this judgment in response to the precarious position in which this Court finds itself on account of a series of direct assaults, as well as calculated and insidious efforts launched by former President Jacob Gedleyihlekisa Zuma, to corrode its legitimacy and authority. It is disappointing, to say the least, that this Court must expend limited time and resources on defending itself against iniquitous attacks.”
Indeed, the issue is central to the case, precisely because, “having no constituency, no purse and no sword, the Judiciary must rely on moral authority” to fulfil its functions.”
As a result, right at the end of the judgment, Justice Khampepe says:
“So let me repeat what I have said before, for it is deserving of ingemination. Never before has the legitimacy of this Court, nor the authority vested in the rule of law, been subjected to the kind of sacrilegious attacks that Mr Zuma, no less in stature than a former President of this Republic, has elected to launch. Never before has the judicial process, nor the administration of justice, been so threatened. It is my earnest hope that they never again will.”
That being said, you may well wonder what this has to do with disinformation? We understand disinformation to be “false, inaccurate or misleading information designed, presented and promoted online to intentionally cause public harm.”
The question arises as to whether the public comments by Zuma constitute disinformation. If they do, it offers an additional means of understanding the seriousness of the case beyond attacks on the integrity of the court, and how outside of social media disinformation is used to attack and undermine democratic institutions.
To assess if the public comments made by Zuma were disinformation we ask whether the statements were false, inaccurate and or misleading, and were they done with the intention to cause public harm?
If you suspect the content you come across could potentially be disinformation, hate speech, harassment of journalists or incitement to violence, there is something you can do about it. You can report it to Real411.
When reading the judgment, it is clear that the court deliberately steers away from addressing the content of Zuma’s allegations; the court refers to them on at least three occasions as “scurrilous” but in general makes no finding on their veracity. When discussing the issue of costs, Khampepe notes “the applicant submits that punitive costs are warranted in this matter because, firstly, Mr Zuma’s conduct smacks of malice and, secondly, his public utterances and accusations are utterly bereft of supporting facts”.
In the following paragraph Khampepe says, referencing the applicant’s call for punitive costs, “the applicant’s submissions in this regard are persuasive.” While it might suggest a level of support for the notion that the accusations were bereft of facts, it isn’t sufficient to determine if they are false and/or inaccurate and misleading.
If, however, we look at the applicant’s (the Zondo Commission) heads of argument, we see in paragraph 69 it quotes the insults directed at the Constitutional Court. There are too many to list here, but the following may help us assess the query as to false, inaccurate and or misleading:
“The Constitutional Court ‘effectively decided that I as an individual citizen, could no longer expect to have my basic constitutional rights protected and upheld by the country’s Constitution’. The Constitutional Court represents a ‘clearly politicised segment of the judiciary that now heralds an imminent constitutional crisis in this country’.” (Appellant Para 69.1)
“The Constitutional Court made a costs order against me. It has become commonplace for some of our courts to make these costs orders against me in order to diminish my constitutional right to approach courts.” (Appellant Para 69.9)
It might seem like cherry picking, but these statements are extremely serious. The first utterance was made on 1 February in the opening paragraph of a letter Zuma made public. He was referring to the decision handed down by the Constitutional Court to compel him to appear before the Zondo Commission. Again, no evidence is presented by Zuma to support his contention that his constitutional rights would not be protected. Indeed, a reading of the judgment clearly demonstrates how his rights were respected and protected.
On the issue of a “clearly politicised segment of the judiciary”, not evidence, but more insinuations are presented in Zuma’s letter. While we cannot say as a matter of fact that no judges have been politicised in the manner suggested by Zuma, with no evidence to support them we can certainly be clear that the statement is inaccurate and misleading.
The second utterance made in his letter, made public on 15 February, offers no evidence of costs orders being made to diminish Zuma’s right to approach the court. Given the seriousness of the allegation, it might be assumed that Zuma would have been at pains to point out where any such evidence lies. Instead, all we can rely on are the court rulings where costs against Zuma have been awarded, and in no instance is there any suggestion directly, indirectly or otherwise that any such costs order was made to diminish Zuma’ rights.
It may have been that he was referring to his recent efforts to appeal against personal costs against him in the Constitutional Court. But as is made clear here, no evidence of an effort to diminish his rights was presented. Zuma’s claim is plainly false, inaccurate and misleading.
On intention, the commission notes in its heads of argument that “in these statements Mr Zuma has aggravated his offence of contempt, by insulting this Court, the Commission and the judiciary at large in a manner that appears calculated to bring the judicial process into disrepute.” The suggestion that the insults were calculated to bring the process into disrepute demonstrates intention.
We then turn to the element of harm. In this aspect it is clear the court has determined there has been harm and significant damage. Judge Khampepe makes several references to the damage caused.
At paragraph 128, Khampepe, discussing the sentence, says, “I order an unsuspended sentence of imprisonment of 15 months. I do so in the knowledge that this cannot properly capture the damage that Mr Zuma has done to the dignity and integrity of the judicial system of a democratic and constitutional nation. He owes this sentence in respect of violating not only this Court, nor even just the sanctity of the Judiciary, but to the nation he once promised to lead and to the Constitution he once vowed to uphold.”
We would submit that harm to our Constitutional Court, as it goes against the public interest, is also a public harm. While only a brief analysis, it seems that not only did Zuma’s insults cause damage to the Constitutional Court, many of them were false and calculated to do damage and undermine the integrity of the court. As such, they can be viewed as disinformation.
We highlight these instances not just to emphasise the importance of the court, but the importance of the real harm and consequences that can flow from them. While Zuma has not been found guilty of a crime, the harm he caused to the court was clearly an aggravating factor in his sentence.
We do not suggest Zuma should not have challenged the commission or pursued every legal avenue available to him, but in pursuing a course of disinformation he has sought to undermine not just our courts, but our democracy, and in so doing has also served to escalate tensions and undermine trust in the judicial system more generally.
There is a lot of content out there circulating on our social media platforms that may relate to, be deemed as, or blatantly include a number of digital harms, as we have seen from the examples above. It is critical that we all play our part in combating and mitigating these digital offences.
If you suspect the content you come across could potentially be disinformation, hate speech, harassment of journalists or incitement to violence, there is something you can do about it. You can report it toReal411.
To make it even more simple, download the Real411 mobile app! Again, we take this chance to also remind you: we are approaching that magical period where political parties need to show us that they care, so in addition to asking about what they will do in your area, ask them to issue one public statement a month in the lead-up to elections that highlights and condemns any attacks on our journalists, AND then to demonstrate what action they took to help combat that.
Remember, if you come across content on social media that could potentially be disinformation, report it to Real411.