Fixing the Fine Print on Election Disinformation

The Campaign on Digital Ethics (CODE) and the Campaign for Free Expression (CFE) have submitted joint comments to the Electoral Commission of South Africa on its proposed Electoral Code of Conduct on Countering Disinformation for the 2026 Local Government Elections, welcoming the initiative while calling for greater legal clarity, stronger transparency rules for online political advertising, and firmer safeguards for free expression.

The draft Code was published for public comment and it is the Electoral Commission's first dedicated attempt to regulate disinformation and protect information integrity across an election period.

"We commend the Electoral Commission for taking this step of developing a dedicated electoral code to address the risks posed by disinformation and to better uphold information integrity generally during elections," CFE and CODE said in their submission. The two organisations said they support the Code's overall objectives but believe those objectives will only be achieved through a framework that is "constitutionally sound, administratively workable and capable of consistent application."

Download the submission here.

CFE&CODE Submissions on Draft Electoral Code 220726.pdf

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A missing enforcement framework

CFE and CODE's most significant concern is that the Code creates a new set of obligations around online campaigning without explaining how breaches will actually be investigated, decided or sanctioned. Findings of "disinformation" can expose political parties and candidates to serious consequences: existing law already permits the Electoral Court to impose fines, campaign restrictions, vote reductions, candidate disqualification and even deregistration of a party, while the deliberate publication of false information intended to disrupt or influence an election can carry up to ten years' imprisonment under section 69(2) of the Municipal Electoral Act.

The draft Code, however, also refers repeatedly to categories of "false or misleading information" that fall short of that criminal threshold. CFE and CODE argue it should be made explicit that such conduct – along with other prohibited acts like the use of falsified data, targeted advertising, fake accounts or bots, and cyber-bullying – still attracts civil sanction through the Electoral Court, rather than existing in a legal grey zone.

The organisations also flagged the Code's proposed Online Complaints Mechanism, which requires parties and candidates to report suspected disinformation within 72 hours of becoming aware of it. Neither the legal status of this mechanism nor its relationship to the Electoral Court's existing jurisdiction is currently defined, and CFE and CODE recommend this be clarified so that the new mechanism cannot be read as displacing established statutory processes without express parliamentary authorisation.

Closing gaps in political advertising transparency

A significant portion of the submission addresses online political advertising. CODE and CFE recommend that the Code's definition of "political advertising" be updated to explicitly cover social media, search engines, websites, messaging services and paid or in-kind influencer promotion, rather than being limited to broadcast advertising. They also call for mandatory disclosure when influencers or content creators are paid to promote parties or candidates, and for a publicly accessible, searchable register of political advertising.

The submission further recommends replacing the Code's 72-hour reporting deadline for suspected disinformation with a "reasonably practicable" standard to accommodate the varying capacity of political parties, from large national parties to independent ward candidates, while still encouraging urgent action where feasible.

Regulating AI and protecting satire

On artificial intelligence, the submission welcomes the Code's requirement that synthetic or AI-generated content be labelled, but argues the provision needs substantial supplementary guidance – covering what counts as "synthetic" content, when disclosure is triggered, and how prominently and for how long a label must appear. CODE and CFE also recommend broadening the Code's prohibition on deceptive digitally altered content so that it is not limited to the deceptive alteration of a person's image, while carving out an express exemption for satire, parody and artistic expression that is clearly identifiable as such.

The organisations further propose strengthening the Code's existing free expression safeguard so that it protects lawful criticism, satire, parody and fair comment concerning not only the Commission, but political parties, candidates and other participants in the electoral process more broadly

A standing forum for platform accountability

Beyond the conduct of political parties and candidates, CODE and CFE argue that many of the systemic risks around election disinformation – algorithmic amplification, recommender systems, advertising architecture and platform moderation – sit with the online platforms themselves. The submission recommends that the Commission convene a standing Election Integrity Forum for the duration of each election period, bringing together major platforms including Meta, Google, TikTok and X alongside civil society, media organisations, election observers and independent researchers, to enable ongoing dialogue on election integrity without extending the Commission's formal regulatory powers.

Building on a year of digital rights work

The submission builds on a year of collaboration between CFE and CODE on digital platforms and democratic integrity, including joint research into online disinformation during the period of heightened tension around the so-called 30 June deadline for the departure of migrants from South Africa, engagement with X and TikTok over their transparency obligations and monetisation of harmful content, and a submission to the Madlanga Commission on coordinated online manipulation relating to the criminal justice sector.

"Protecting electoral integrity in the digital age requires a careful balance," the organisations said. "Democratic societies have a legitimate interest in addressing coordinated manipulation, deceptive synthetic media and intentionally false election-related information. Equally, regulation in this field must respect constitutional guarantees of freedom of expression and political participation; provide clear and predictable standards; and ensure that any enforcement mechanisms operate within a transparent and lawful framework."