Where do we draw the line between the constitutional right to freedom of expression, right to media and words amounting to hate speech.
The South African Constitution which is the supreme law of the land states under section 16(1) of the Bill of Rights that “everyone has the right to freedom of expression which may include (a) freedom of press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity….” However, this right does not extend to “(2)(a) propaganda of war; (b) incitement of imminent violence; (c) advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.”
Section 10(1) of Promotion of Equality and prevention of Unfair Discrimination Act provides that subject to the provision of section 12 under the same Act, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds (race, gender & disability), against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or incite harm; (c) promote or propagate hatred. However, such publication does not amount to hate speech and or the following defence could be raised if; the offender has a bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, or that such advertisement or notice aligns with S 16 of the Constitution.
The legislature has gone on to draft a piece of law that specifically and holistically deals with hate speech known as the Prevention and Combating of Hate Crimes and Hate Speech Bill of 2018. This is a revised bill after the 2016 first draft. It provides for a similar and somewhat different definition of hate speech as provided by s16 of the Constitution and section 10 of PEPEUDA, with the exception of 17 prohibited grounds of prejudice. The listed prohibited grounds under the Bill are a closed list of the following factors: race, age, gender or gender identity, disability, religion, ethnic or social origin, albinism, sex which includes intersex, sexual orientation, nationality migrant or refugee status, HIV status, Language, culture, colour, occupation or trade and political affiliation or conviction. This definition was endorsed in the constitutional court at the matter of Qwelane v SA Human Rights Commission and another.
The Canadian Supreme Court in R v Keegstra, the court defined hatred as an emotion of intense and extreme nature that is clearly associated with vilification and detestation. Therefore, intention must be present to prove the first criteria of hate speech, viz communication must advocate or encourage hatred. In the South African Constitutional court in the matter of Islamic Unity Convention v Independent Broadcasting Authority, the Constitutional Court held that the prohibition of hate speech as defined by the law does not amount to limitation to the right to freedom of expression. However, the state can allow encroachment of freedom of expression that amounts to hate speech if only such limitation meets the justification criteria under section 36 of the Constitution.
Everyone has the constitutional right to freely express their thoughts and opinions on any platform, such information can be a mere opinion of someone else, academic, political, creative, marketing strategy etc. However, once that publication or communication amounts to advocacy of hatred towards a certain group of people, then the first element of hate speech has been satisfied.
The second requirement of hate speech viz cause of harm or inciting of harm, can be found in the case of AFRI-forum against Mr Julius Malema (2011). Mr Julius Malema sang a struggle song at political rallies called “Awadubula (i) bhulu / shoot the boer”. This song became sensationalized on media and created a lot of controversy. Afriforum went on to sue Mr Malema alleging that the song caused “systematic disadvantage for Afrikaners, undermined their human dignity, could propagate hatred and incite violence based on language, culture and ethnicity.” In Mr Malema’s defence, he contended that the song was sung “…. in recognition of the past struggle and as a reminder of the need to oppose the current oppression of black people.” The following factors were considered by the court in adducing whether the song amounted to hate speech; 1) the meaning of the words, 2) what the song meant to different groups of people, 3) whether it constituted hate speech and 4) whether the fact that the song symbolised a struggle within black heritage overrode the right of those claiming that it was hate speech. The court went on to rule that the song could reasonably be construed to “…… demonstrate an intention to be hurtful, to incite harm and promote hatred against the white Afrikaans speaking community, thus it amounted to hate speech and an interdict was successfully granted against Mr Malema.
In summation, the new Bill which advocates against hate crimes and hate speech has opened door for different groups of people to be able to sue depending on any of the 17 grounds listed under the Bill. Immigrants can sue for xenophobia and xenophobic attacks suffered because of advocacy of hatred against them. This includes the LGBTQI community that may be a victim of hate crimes such as corrective rape or even victims of femicides. The Bill requires such incitement to be communicated in any tangible form to a minimum of one person. In brief, hate speech is a combination of advocacy of hatred based on prejudice motivated by the listed prohibited grounds which leads to either incitement of harm or cause actual harm. Harm can include a violation of a person’s human dignity. The stakes are much higher, posting, sharing, and retweeting content requires an eye of accountability. If you are a victim of hate crime or hate speech, such matter would appear and be addressed in the Equity Court of South Africa.
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BY RAMATSITSI ATTORNEYS
