‘Fake news code flawed’: Analyst warns IEC Disinformation Code is unworkable

Some civil society movements claim the Electoral Code of Conduct’s Disinformation Code is flawed and must be remedied in time for the November local government elections. Electoral process analyst Michael Atkins’ submission to the Electoral Commission of SA (IEC) claims the draft code contains errors and omissions that, if left uncorrected, render the code either ineffective, or liable to produce severe unintended consequences. There are structural reasons why the draft code cannot meet its own objectives without the Municipal Electoral Act being amended, Atkins said.

The IEC has shifted its deadline for input to Wednesday to give more time for public comments. The draft was introduced to counter the deliberate spread of falsehoods during the upcoming elections. Any contravention or failure to comply constitutes a breach where the party or candidate would be subject to sanction in terms of the Electoral Act.

Atkins argues that any contravention of the code is, by definition, a criminal offence and can only be ruled on by the court, creating a process too unwieldy in combating disinformation effectively. This is complicated by the fact that the Municipal Electoral Act does not contain any equivalent of section 103A of the Electoral Act, which allows the IEC to mediate in disputes over contraventions of an electoral code. He said the code would “result in an overwhelming flood of complaints over conduct that constitutes a criminal offence, or that nothing would attract criminal sanction”.

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In either case, the code is rendered toothless, with the credibility of the electoral process being severely undermined. The analyst, however, stressed that the IEC’s draft Disinformation Code addresses a crucial problem affecting elections in the digital age, where information can spread rapidly, and disinformation can have wide effects.

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