Written by: Daniela Ellerbeck, FOR SA Legal Advisor
Article source: JOY! Magazine
The term “hate speech” has become part of the everyday vocabulary, but does it exist in South African law? Is it prohibited? Is it a crime? What are the penalties? What is hate speech legally? Hate speech is one type of expression that is explicitly excluded from constitutional protection – i.e., it is speech that our Constitution specifically does not protect. The Constitutional Court, our highest court, recently defined hate speech in its 2021 Qwelane judgement. It ruled that hate speech is expression (wider than just speech, and including writing and/or conduct) that “travels beyond mere offensive expression and can be understood as ‘extreme detestation and vilification which risks provoking discriminatory activities against that group’”. Importantly, the Constitutional Court pointed out “that the expression of unpopular or even offensive beliefs does not constitute hate speech”.
Is hate speech prohibited?
The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“the Equality Act”) prohibits hate speech. The definition of hate speech in this Act, which was amended and significantly narrowed by the Qwelane judgement, now reads as follows: “… no person may publish, propagate, advocate, or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”(Our emphasis).
This means that if a reasonable person listens to or reads your words, s/he would objectively understand that they clearly intend to cause and/or incite deep emotional and psychological harm that severely undermines the dignity of the group targeted by your speech. Not only that, s/he would also understand your words actively seek to stir up hatred against that group. The bar for an expression to qualify as hate speech is, therefore, quite high. Importantly, the Equality Act does not criminalise hate speech but rather provides for civil remedies – such as an apology or a fine (i.e., no criminal record or imprisonment will result.)
Is hate speech a crime?
One of the most concerning threats to freedom of speech is the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Bill”), which aims to criminalise hate speech. This proposed law, which is currently being considered by Parliament, was opened for public comment last year and over 100,000 submissions were made to object to its provisions. Were this law to be passed in its current form, you could face a three-year jail sentence for a first offence, and 5 years’ imprisonment for a subsequent offence. Even sharing someone else’s comments, if they amount to hate speech, will be an offence.
Equally problematic is that you are more likely to be found guilty of the crime of hate speech under the Bill than to commit the civil offence of hate speech under the Equality Act. This is because the Bill’s definitions of “hate speech”, “harm”, and “victim” are wider that those in the Equality Act. There is also inadequate protection from prosecution for bona fide religious speech.
Way forward:
The Bill clearly demonstrates how vitally important it is that we participate in the law-making process to ensure that our freedom to live out our faith, and to tell others about it, remain protected. FOR SA will continue to actively engage Parliament and we will be sure to alert those who are willing to fight for faith and freedom to make your voice heard as soon as further opportunity is given for public input on this Bill.
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Date published: 18/05/2022
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