Can You Go to Jail for Sharing Fake News in South Africa?

Ahead of major national and local events, false rumours, fake news and AI-generated deepfakes can spread across Facebook, X, TikTok and WhatsApp within minutes. A fabricated voice note warning of a power blackout or a manipulated video claiming that an election was rigged can mislead people and cause serious concern.

But can you go to jail for sharing something that turns out to be false?

In South Africa, sharing false information is not automatically a criminal offence. However, depending on what you share, why you share it, and the circumstances, you could face criminal charges or a civil lawsuit.

Here is what the law actually says.

Is Sharing Fake News Illegal in South Africa?

South Africa has no general law that makes every inaccurate social media post a crime simply because it is false.

However, several existing laws may apply to online communications, including the Cybercrimes Act 19 of 2020, the common law, and other legislation that addresses specific types of unlawful conduct.

The Constitution also protects freedom of expression, including the freedom to receive and share information and ideas. This protection is not unlimited. For example, the Constitution excludes certain forms of expression, including incitement of imminent violence and advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm.

The important distinction is that being wrong online is not the same as committing a crime.

When Can a Social Media Post Become a Crime?

The Cybercrimes Act deals with certain harmful messages shared electronically. It does not make every rumour, misleading statement or deepfake a criminal offence.

Here are some situations in which the law may apply.

1. Messages Intended to Incite Violence or Damage Property

Section 14 of the Cybercrimes Act makes it a criminal offence to disclose a message through an electronic communications service with the intention of inciting violence against a person or group, or property damage.

For example, deliberately circulating a message intended to encourage a crowd to attack a particular community or destroy its property could fall within this provision if the legal requirements are met.

Section 15 deals separately with certain unlawful threats of violence or property damage communicated electronically. The message must meet the requirements of that section, including how a reasonable person would understand the threat in the circumstances.

Not every angry post, political allegation or false warning amounts to one of these offences. The actual wording, circumstances and required legal elements matter.

2. Fake Videos, Voice Notes and Deepfakes

Artificial intelligence makes it increasingly easy to create fake videos, cloned voices and manipulated images that appear genuine.

But creating or sharing a deepfake is not automatically a crime simply because the content is artificial or misleading.

Depending on the facts, the conduct could fall under an existing offence. For example, section 9 of the Cybercrimes Act deals with cyber forgery and cyber uttering where false data is made or passed off with the intention to defraud and the required actual or potential prejudice to another person.

Other laws may also apply if the content involves threats, unlawful incitement, harassment or defamatory allegations.

The offence, if any, depends on what the person did, their intention and the specific requirements of the applicable law.

3. Defamation: Can You Be Sued for Reposting a False Claim?

Yes, potentially.

South African law allows a person whose reputation has been unlawfully harmed by a defamatory statement to bring a civil claim.

You do not necessarily have to be the person who originally wrote the post. Sharing, reposting or forwarding someone else’s statement may also expose you to a defamation claim, depending on the circumstances.

For example, repeating an untrue allegation that a named person has committed a crime could harm that person’s reputation.

However, not every false statement is defamatory, and liability is not automatic. The meaning of the statement, the circumstances in which it was published, and any applicable legal defences must be considered.

A successful claim may result in a damages award or other appropriate relief, depending on the case.

Do You Have to Know That a Post Is False to Be Guilty?

Not necessarily in every case. The answer depends on the offence being considered and the form of fault the law requires.

Many criminal offences require intention, but the precise requirements differ from one offence to another. The State must prove every element of the particular criminal charge beyond reasonable doubt.

One legal concept is called dolus eventualis. In simple terms, this can arise when a person actually foresees the possibility that a prohibited consequence may occur and nevertheless reconciles themselves to that possibility.

It is not enough, by itself, that the person should have foreseen the risk. Actual foresight and acceptance of the risk must be established.

For example, someone who deliberately distributes a message intending to provoke violence may be in a very different legal position from someone who unknowingly forwards an inaccurate community notice.

Carelessness alone does not automatically establish criminal intention. However, some offences can be committed negligently, so the absence of intention does not provide a universal defence to every possible charge.

The key point is that forwarding a message does not automatically make you a criminal, but claiming that you did not create it is not a guaranteed defence either.

Can You Be Arrested Just for Sharing a Rumour?

A false rumour does not automatically justify an arrest or conviction.

The police and prosecutors must consider whether there is a legal basis for the action taken and whether the available evidence supports a recognised offence. A criminal conviction requires proof of the elements of the offence beyond reasonable doubt.

The Cybercrimes Act also provides for penalties for certain offences involving harmful electronic messages. Under section 19(7), a person convicted of an offence under sections 14, 15 or 16 may face a fine, imprisonment for up to three years, or both.

That does not mean every person who shares misinformation faces three years in prison. The penalty depends on the offence, the circumstances and the court’s decision.

How Can You Protect Yourself When Sharing Information Online?

You are not generally required by a standalone criminal law to fact-check every social media post before sharing it. Nevertheless, taking a few precautions can help prevent harm and reduce legal risks.

The Key Takeaway

South African law does not automatically send people to jail for sharing every false tweet, WhatsApp message or AI-generated video.

However, online communications can have serious legal consequences when they meet the requirements of offences such as incitement to violence or property damage, certain threats, cyber forgery or other unlawful conduct. Publishing or repeating defamatory allegations can also lead to a civil claim.

Before you share a sensational post, take a moment to check whether it is genuine. A quick check could help prevent unnecessary panic, protect another person’s reputation and keep you from becoming involved in a legal dispute.

Think before you share. What you post online can have real-world consequences. 

Understanding the legal consequences of sharing information online can be complicated. If you are concerned about possible legal action over a social media post, or believe you have been unfairly accused of spreading misinformation, our legal team can help. We provide confidential, professional guidance tailored to your circumstances, helping you understand your rights and potential liabilities under South African law, including the Cybercrimes Act and other relevant legislation. Contact us today for legal guidance suited to your situation.