Hate speech will hobble free speech*

The Free Speech Union of South Africa was established with 3 particular goals:

• Keep the right to free speech in the public square so it is never taken for granted;
• Keep an eye on the closing down of free thought and speech in universities and schools;
• Watch for threats to these freedoms by a governing party which is flailing ahead of a national election in 2024.

We recognise that our right to freedom of speech is governed by the Constitution, 1996. This right is very broad and its limitations are few.

The Constitution guarantees free speech and its only limitations are in terms of Section 16(2). The right to free speech doesn’t extend to:

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. (Our underlining)

Section 16(2)(c) is the one most relevant to us. This narrow exception to free speech requires all three conditions to be met -

• The hatred must be intentional - it’s impossible to experience hatred on a negligent, accidental or subconscious basis; 
• The harm can be physical or it can be serious harm to dignity;
• Whether a violation has occurred is an objective test - the reasonable person would have to identify the violation as serious. The existence of a violation is not based on the subjective belief of the victim.

Our constitutional right to free speech is circumscribed by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Pepuda). One of the purposes of Pepuda is ‘to prevent and prohibit hate speech’. The liability for harmful or hateful speech is civil, not criminal.

However, the real threat to free speech is the Prevention and Combating of Hate Crimes and Hate Speech Bill of 2018 [B9-2018] (the Bill). 

The hate speech provisions in the Bill go well beyond our constitutional limits. First, there are 15 prohibited grounds, not four. Second, the Bill will prohibit and criminally punish speech which has ‘a clear intention to be harmful or incite harm, or to promote or propagate hatred’. This wording is far wider than Section 16(2)(c) of the Constitution. (Our underlining)

Legislation which exceeds the limits of the Constitution is invalid, unless it is justified by Section 36 of the Constitution. Section 36 provides that a guaranteed right may be limited only to the extent that the limitation is ‘reasonable and justifiable in an open and democratic society’ and in the light of all relevant factors. One factor is whether ‘less restrictive means’ could have been used to limit the guaranteed right.

The relevant factors to be taken into account include - 

(a) the nature of the right; 

(b) the importance of the purpose of the limitation; 

(c) the nature and extent of the limitation; 

(d) the relation between the limitation and its purpose; and 

(e) less restrictive means to achieve the purpose.

The Bill defines a ‘hate crime’ as ‘an offence recognised under any law, the commission of which is motivated…[by] prejudice, bias, or intolerance towards the victim’ which is based on the victim’s race or other ‘characteristics’.  

Two additional characteristics in the Bill are ‘political affiliation or conviction’ and ‘occupation or trade’. Is the latter to protect the dignity of lawyers?  

Any person guilty of a hate crime is liable on conviction to a fine, prison term, period of correctional supervision, reprimand or suspended sentence.  

Dr. Jeffery holds that the Bill does not meet the requirements for a valid limitation:

1. The right to free speech is ‘the lifeblood of an open and democratic society’ (Dikoko v Mokhatla 2006(6) SA 235 (CC), at para 92);   

2. The definition of hate speech is too wide and the penalties are too severe. This is sure to have a profoundly chilling effect on speech, particularly that which falls outside the exceptions in Section 4(2) of the Bill. The grounds in the Bill on which speech may be punished as hate speech are too extensive;

3. ‘Less restrictive’ means to curtail hate speech are available. Hate speech is already prohibited under Pepuda, as well as provided for by defamation law and crimen injuria. The Bill is unnecessary.

Are ‘hate crimes’ needed at all? Courts are obliged to take account of all the circumstances in deciding on an appropriate sentence. They can regard a racial motive as an aggravating factor justifying a harsher punishment. 

Hate crimes are crimes, therefore they need to be proved beyond a reasonable doubt. It’s a high standard of proof which might be difficult to meet. If hate crimes were placed under current criminal law, aggravating factors need be proved only on the lower standard of a balance of probabilities. 

Victim impact statements

Prosecutors are expected to introduce ‘victim impact statements’; even though they may be based on hearsay or other inadmissible evidence. 

This clause appears to be used as evidence at the stage when evidence in aggravation of sentence is considered. The admission of these statements may encourage harsh sentences for speech that should not merit any punishment at all in an open democracy. 

Defences to hate speech 

The grounds on which hate speech does not apply are: 

‘(1) if it is done in good faith; in the course of engagement in bona fide artistic creativity; to the extent that such creativity does not advocate hatred that constitutes incitement to cause harm; 

(2) any academic or scientific inquiry; 

(3) fair and accurate reporting or commentary in the public interest; or 

(4) the bona fide interpretation and proselytising or espousing of any religious belief, to the extent that such interpretation 

and proselytisation does not advocate hatred that constitutes incitement to cause harm.’

These defences are too limited; the Bill will punish people for commenting on or debating issues vital to democracy and prosperity. This cannot meet the justification criteria in Section 36 of the Constitution.

Solutions

There is no need for additional hate speech provisions even though 

many commentators claim that the Bill is necessary to counter a plethora of racial incidents on social media. Eight comprehensive opinion polls on racial issues conducted over the years, which have been commissioned by the IRR, have shown that very few South Africans, including black respondents, identify racism as a serious unresolved problem.

Mia Swart, professor of international law at the University of Johannesburg stated (Business Day, January 2016): ‘Freedom of speech means nothing if it does not include the freedom to engage in unpopular, controversial, and even offensive speech. Freedom of speech would not be necessary if it covered and protected only correct and innocuous speech… The debates [on the Penny Sparrow issue] show that South Africans are sufficiently vocal to remedy speech with speech.’ 

Criminalising hate speech is particularly objectionable

Turning hate speech into a crime is particularly objectionable, as we know from the abuse of criminal defamation rules. 

The Bill calls for a ‘criminal justice-centric response’ to what is a ‘socio-cultural’ issue. Criminalising ‘offensive behaviour’ is not likely to bring change. What is required is a multi-sectoral approach, including raising public awareness and education on these sensitive issues. 

Conclusion

Government should bring the hate speech provisions in Pepuda into line with the Constitution. The Bill is unconstitutional and unnecessary. 

*This article is based on the written representations made by Dr. Anthea Jeffery, Head of Policy Research at the IRR, on behalf of the IRR to parliament on the Bill in October 2021.