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Source: The Telegraph.
Source: The Telegraph.

In a multi-cultural and divided society, hate speech is probably one of the most deconstructive crimes that can be committed.

Hate speech is a tool most often used to divide people and to cause conflict. However, one must always have clear sight of the distinction between hate speech and exercising one’s right to freedom of expression (section 16(1) of the Constitution) which, of course, is limited. Hate speech, incitement of violence, and propaganda for war, are not protected in terms of section 16(2) of the Constitution.

Earlier in 2016, Parliament proposed the new Prevention and Combating of Hate Crimes and Hate Speech Bill.

In this Bill the legislature intends to criminalize hate speech and seemingly related acts. This goal of the legislature is honourable, and even morally sound. However, the problem arises with the wording of the Bill and the definition given to hate speech. The Bill sets out iron-fisted limitations on the right to freedom of expression, and the act of hate speech is so broadened that it is in fact quite precarious.

We all know saying things to people can get you into trouble – for instance, with defamation (where you intentionally harm the reputation of another) and crimen iniuria (where you intentionally harm the dignity of a person). But the Bill takes this to a whole new level. Have a look:

Section 4(1)(a) of the Bill states:

 Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that –

(i) advocates hatred towards any other person or group of persons; or

(ii) is threatening, abusive or insulting towards any other person or group of persons,”

And furthermore:

demonstrates a clear intention, having regard to all the circumstances, to –

(aa) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or

(bb) stir up violence against, or bring into contempt or ridicule, any person or group of persons,

Then there are grounds upon which one is not allowed to do so, which includes:

race, gender, sex, which includes intersex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade

In short, hate speech can be anything. The normal criteria of hate speech, being the inciting of violence and hate, has now been broadened to ‘insulting’, ‘ridicule’, or ‘bringing into contempt’, not even an individual, but a numberless, faceless group of people who are ‘insulted’. We enter into a twilight zone when we read the definition of a “victim” in the Bill, which includes a juristic person (for example, a company). The intention of this definition is for situations where companies are targeted because they are owned by, for example, Muslims or homosexuals. However, the vagueness of it is striking.

Source: The Telegraph.

This Bill also includes any electronic communications (section 4(1(b)) that transgresses any of the abovementioned vague concepts, thus including the internet and social media. According to section 4(1)(c), the mere act of making it available (i.e. sharing it privately) renders one guilty.

The underlying idea of this Bill, being to stop the very malicious attacks on, for example, homosexuals and intersex persons who are met with extreme violence and corrective rape, is most honourable and, much needed. I am not commenting on the validity of the protection the Bill strives to give, but I believe that this Bill is, in some instances, overzealous.

I will immediately concede that fostering hate, inciting violence, threatening and abusing a group of persons on arbitrary grounds, is intolerable. However, the Bill includes acts that can be a great limitation of free speech. It is important to note that the Act does not define what “insulting”, “bringing into contempt”, or “ridicule”, means. It is therefore prudent to explore what these terms would ordinarily mean.

“Insult” is defined by the Oxford Dictionary as “to say or do something that offends” and “insulting” is defined as “causing or intending to cause someone to feel offended.” Does this mean that offending someone becomes a criminal offence? How is it measured? Is it how the person feels about what you said? What people find offensive, is immeasurably varied. By using these vague concepts the sublimity the Bill’s purpose is ridiculed in the application thereof.

To be fair, the Bill states that the insult must be coupled with the intent to “bring into contempt” or “ridicule.” “Contempt” is defined as “feeling like something is not worthy of respect” and “ridicule” is defined as “unkind comments to make fun of or makes them look silly.” Feeling uncomfortable, yet?

One might ask, “well, is it not something to strive for that we should respect each other?” I will answer yes, but making the failure to do so a criminal offence, is extreme. I agree that racist comments and ridiculing people arbitrarily on the base of race, sex, and religion is wrong, but this Bill goes too far. The Bill gives no defence such as truth, public interest, or even jest in the manner that the criminal offence of defamation does. Defamation or crimen iniuria needs to have a specific victim, but the Bill defines the victim as any person belonging to any group who is insulted by your comment. You might not even know about it, until the police comes knocking on your door. This broadness is aimed at instances like Penny Sparrow’s comments, which is obviously wrong. But including ridicule and insult to the repertoire of hate speech, without any defence, seems a too tight rein on freedom of speech. Therefore, once again the Bill is sublime in purpose, but ridiculous in practice.

One must also take into consideration that the culture of the internet is mostly based on ridicule and satire that will most likely be offensive to a lot of people. Take, for instance, communities like 9GAG, and even on YouTube there is content ridiculing groups of people – not maliciously, but for an honest laugh. Consider the example of the internet trend of “Vines” (humorous six-second videos) most of which are based on stereotypes, but are quite funny. There is content joking about white, black, Hispanic, Chinese, and Indian culture, and the stereotypes surrounding them, as well as joking about the actions of men versus women. I believe that some might find it offensive, but a majority will take it for what it is: a joke. But this Bill can potentially make the making, or even the sharing of such content, criminal.

Truth is not a defence in the Bill, and, as this crime is not a common law offence, those remedies don’t apply. One must keep in mind that “intent” in criminal law also manifests in a form called dolus eventualis, meaning that if you foresee the possibility that your remark will insult and cause contempt, and you accept it, you will have the intent. Yes, you have criminal defences at your disposal, like provocation (which is not an easy defence), necessity, private defence, etc., but you have to stand in court and hire a lawyer to defend yourself for something you said.

Therefore, one of the crucial issues with the Bill is that it proposes no limit on criminal liability such as truth, public interest, fair comment, or jest. What then happens to satire if you are not allowed to make jokes? What if the insulting fact is absolutely true? It is in this sense that this Bill poses a great threat to freedom of speech in South Africa.

One cannot help but to compare our possible future with that of the United States, where their First Amendment provides for almost-unchecked freedom of speech. The underlying philosophy of the United States is that you should be free to speak you mind, and if it offends someone, they are just as free to retaliate with their free speech, and the most convincing argument will be accepted. Why is a different approach needed in South Africa?

Insulting or ridiculing someone, even on the basis of the abovementioned grounds, is a very different thing from promoting hate and violence. Treating these instances as the same thing, and punishing them in the same manner, seems to me that the punishment does not fit the crime. What I also find troubling is that for insulting and ridiculing someone (as opposed to promoting violence and hate), you will be met with the full weight of the criminal justice system in a similar manner as when promoting hate and violence, and this is very unfair for the lone individual against the machinery of the State.

I have no doubt that the constitutional validity of this Bill will be challenged almost as soon as it takes effect, but that entails someone paying inevitably-exuberant legal fees to defend himself. If we cannot speak our mind, at least about the wrongs in our society, even if it insults and brings into contempt some class of people, how can we remain an open democratic society?

Author: Johan van der Merwe is a final year law student at the University of Pretoria. He will practice law, but also pursue a master’s research degree on the topic of constitutional interpretation and the rule of law.

  • Steven van Staden

    Thank you for your summation of the proposed new Bill. Your every word seems to call for what one wishes could be described as common sense. As you point out, so many clauses in this proposed Bill cast such a wide net that they threaten fundamental, legitimate forms of freedom of expression which have nothing to do with hate speech or incitement. In fact, clauses in this Bill undermine the very foundation of democracy.

    In tandem with Government’s threat, a retrograde species of ‘newthink’ (if one may coin a new phrase) seems also to have gained currency among a vocal number of students (if they can be so described) with the intention to oust what are denigrated as exclusively Western tenets and laws and replace them selectively with some group-serving Afrocentric alternatives that are being broadcast by mob rulers of the student riots.

    In terms of the proposed new legislation, it would be a criminal offense to describe groups such as the rioting mobs us thugs or barbarians, even though those words accurately describe the mentality and actions of such groups. The arguments against such appellations come easily to the other side who, using unwritten Afrocentric diktat, have it that their actions are not unacceptable or abnormal but progressive.

    By way of example, an ANC Cabinet Minister has recently legitimised freedom of violent action by declaring that student ‘protesters’ are ‘not crazy’ and that their demands need to be acceded to in order to prevent the continued burning of buildings and buses. It is difficult to correlate this government tolerance of violent and destructive anti-social public behaviour with the proposed new restrictions on freedom of speech which would prohibit criticism that might be taken to advocate hatred or bring into disrepute the said group, because it is the behaviour of the group, not the criticism of it, that is bringing the group into disrepute or eliciting public hatred of it.

    It has been generally accepted in Western society that it is wrong to condemn characteristics of people that they cannot change, such as age, skin colour or sexual orientation, but that choices, such as rioting, fomenting race hatred, corruption and general criminal behaviour, should necessarily be open to the most stringent condemnation. People choose to be members of rioting groups, political parties or religious organisations, and if those groups are considered by an individual to be harming our society, the individual should be free to exercise the right to criticise and condemn them and their deleterious actions.

    The proposed new Bill clearly prohibits this kind of legitimate criticism which is the cornerstone of democratic civil liberty which cannot survive the exclusion of freedom of expression.

    • Rory Short

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      Basically for reasons of long term societal health it is essential that every possible channel along which criticism can flow is kept open. The ideal situation therefore is that the flows along these channels should be completely unrestricted. This world is not populated exclusively by people with good intentions however and for that reason society is compelled to introduce restrictions into the channels in order to try to curb their abuse. Therefore in introducing any restriction the underlying societal feeling should be of regret that such a restriction should be necessary. This bill does not seem to be emanating from such a space.

  • Donnie Marx

    Amazingly, Penny Sparrow was convicted without this law. How?

  • Harald Sitta

    Most correctly analyzed! The satdnard will be the ‘feeeeeling’ of some p.c. sissies . I can;’t say how much i am in contempt of them and how often I like and actually do ridicule them ….

    Of course, most of the bill is legal nonsense and will not survive in court. But the real dangers lies in the fact, that a ‘domination of suspicion” is created – as in all totalitarian systems – in which people can be intimidated by the threat of persecution. Look, i am an old battle horse and don’t give a damn but that about the average people who fear to be dragged into court …….

    It is awful! let us fight it!

    • Vicky Moriarty

      I will join you in the fight, but only if it is a fight for a first amendment, free from any “moral” limitations.

  • Altus Pienaar

    What is most disturbing is that at the core this kind of legislation seems to try and manipulate our thought processes and opinions.
    While I agree that hate and discrimination are wrong, I will fight for the right of others to do so if they find solace in such an act and at the same time ridiculing them for doing so.
    In another 10 days I will be standing trail for ridiculing a law firm on fb for ripping off one of their clients.
    I know that my comments was justified by the law firms callous disregard for their clients needs but with legislation like this the tables could be turned completely against me.
    What happens to our right to express an opinion? The South African law seems to completely disregard the fact that an opinion inherently can’t be falsified. It also seems to draw a clear parallel between statements published in the media vs opinions left on social media.Surely the fact that what people read in the news carry a vastly different weight than what someone might have expressed on his fb timeline or Twitter in the heat of the moment with no mechanism of filtering or reviewing such statement before pressing the enter button except your own common sense.

    Further more the punitive measures enforced by our current colonial legal system will do nothing but divide even more and build more hate and resentment.
    On the other hand as part of a restorative process such laws can be used to restore relationships and help heal indifference amongst different groups. This could be a totally different matter all together.

  • Zeph

    I hate you!
    Let the idiots now lock me up.
    That is how stupid it is.

  • ODB_BloodyAgent

    The reason why South Africa cannot take the example from America’s 1st amendment is because we are a Godless society.
    The American Bill of Rights states that people are imbued with inalienable rights by their creator.
    The ANC (communists) believe that people are imbued with rights by the government.

    • Vicky Moriarty

      This is a great comment! I blame FW for not negotiating a first amendment more than I blame him for anything else.

  • Vicky Moriarty

    There is no such thing is “hate speech”. Limiting the first amendment can never be done “with good intentions”. To those who support this; be careful there is a saying “jy maak ‘n lat vir jou eie gat”.

  • Vicky Moriarty

    “One cannot help but to compare our possible future with that of the United States, where their First Amendment provides for almost-unchecked freedom of speech. The underlying philosophy of the United States is that you should be free to speak you mind, and if it offends someone, they are just as free to retaliate with their free speech, and the most convincing argument will be accepted. Why is a different approach needed in South Africa?”

    Why? Because people like Johan think that “hate speech” is a real thing.
    The goal of this legislature is IMMORAL and NOT LEGALLY SOUND.
    The answer to 1984 is 1776. Careful Johan, the Alt Right is changing the world, they have already taken over large swaths of the internet.

  • v_3

    Well Cyril deputy-scumbag gave a nice example in Parliament today.

    Strangely enough the ZANC speaker has not referred HIM to Parliamentary disicipline.