The Free Market Foundation (FMF) has welcomed changes to the justice department’s Prevention and Combating of Hate Crimes and Hate Speech Bill. It notes, however, that the Bill is not needed, and that the definition of hate speech remains problematic.
The Rational Standard has published widely on the Bill. You can read it all here.
History of the Bill
The media release says that the “original iteration of the bill, the subject of widespread public disapproval, was published in 2016 and included provisions that would have seen the end of freedom of expression in South Africa. The public engagement on this bill, and government heeding the concerns of civil society, is a welcome incident of public participation in good faith, for which government must be commended.”
Highlighting the history of the Bill, the FMF says it “initially criminalised petty insults that ridiculed or brought people into contempt based on their occupations or beliefs. This would have meant that insults directed at the President, or directed at bad or ill-considered opinions, could land one in jail for up to three years for a first offence, and up to ten years for consequent offences.”
The original bill’s definition “of hate speech did not align with the definition of hate speech found in section 16 of the Constitution; that is, advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
The new bill’s definition is closer to that of the Constitution, argues the FMF. “Hate speech is now defined as publication, propagation, advocacy or communication, in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm or promote or propagate hatred, based on various grounds. This definition, despite its labyrinthine character, accords closely with that of the Constitution, albeit imperfectly.”
The previous Hate Speech Bill protected seventeen characteristics, including “belief” and “trade or occupation”. The FMF writes that the new bill protects fifteen grounds; an improvement, but still nowhere close to the Constitution’s four protected grounds. The think tank “recommends in the strongest terms that the definition of hate speech in the Constitution be used in the bill without modification.”
The exemptions in the new bill were welcomed by the FMF. “The new bill makes generous provision for exemptions from the prohibition against hate speech. These include artistic expression; scientific and academic inquiry; religious expression; and, crucially, commentary and reporting that is fair and accurate.” This means that “the bill no longer poses an existential threat to freedom and democracy in South Africa”.
Existing law is good enough
The FMF believes existing law regulates hate speech sufficiently, and that new law isn’t necessary. “The Promotion of Equality and Prevention of Unfair Discrimination Act already prohibits hate speech, and the Films and Publications Act empowers the Films and Publications Board to refuse classification to publications which contain hate speech. Most notably, the doctrine of crimen injuria has been used in our law to prosecute cases of hate speech, most notably the case of Penny Sparrow and more recently that of Vicki Momberg.”
It continues, saying “South Africa must not legislate for legislating’s sake. It sets a fallacious precedent that government intervention can solve any social ill by throwing a law at it, and this, in turn, leads to a government that costs the taxpayer more money, costs the citizen more freedom, and ends up failing to solve the problem anyway. Existing law – especially the common law doctrine of crimen injuria – which can be refined where necessary, must be preferred to the introduction of new law.”
Good news, but not enough
The Board of Directors of Rational Publications welcomes these developments. The Bill, in its previous form, would have been not only the end of the Rational Standard, but also the end of any kind of opposition to narratives adopted by the political class. The new version of the Bill is light-years better.
Expression should not, however, be regulated by government. It is a slippery slope, and this new and improved Hate Speech Bill may yet prove to simply open the door for government. Racists, sexists, and bigots generally, should be condemned through voluntary means – a mechanism that works. Countless bigots lose their jobs and social capital across the West on a daily basis. This likely leads them to introspect. Throwing them in jail has an opposite effect and will cause other bigots to bottle up their feelings and brew more resentment.