SAHRC makes Submission to Meta Oversight Board regarding Continued Display of Apartheid Flag

Attention: Editors and Reporters

Friday, 8 November 2024

In line with its constitutional duty to promote and protect human rights, the South African Human Rights Commission (SAHRC) has made a submission to the Meta Oversight Board (MOB), reiterating that South Africa’s courts have already pronounced on the issue of harmful symbols such as the apartheid-era flag. The Supreme Court of Appeal (SCA) decision in Afriforum NPC v Nelson Mandela Foundation Trust confirmed that the gratuitous display of the apartheid flag constitutes hate speech. This settled legal position sets a clear standard, and Meta, as well as other social media platforms, are expected to align its content moderation policies accordingly.

The SAHRC has made it clear that South African law, through the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), prohibits the dissemination of hate speech and harmful symbols. The Commission’s submission emphasizes that freedom of expression does not extend to speech that promotes racism or incites violence, as recognized in both South Africa’s Constitution and the SCA ruling. Social media platforms must therefore uphold its obligation to properly moderate content that violates these legal standards. The Commission is determined to ensure that harmful content, such as the apartheid flag, is not allowed to proliferate on Meta and other online platforms.

The Commission further reminds the public of the importance of responsible online behaviour and encourages all social media users to refer to the SAHRC’s Social Media Charter as a valuable tool to guide respectful and lawful interactions. The Charter provides clear guidelines on avoiding hate speech and discrimination in online spaces. Currently, the SAHRC is engaged in several court matters where individuals have violated the PEPUDA through harmful online conduct, underscoring the need for greater awareness and accountability in digital environments.

The SAHRC will continue to uphold its mandate to protect human dignity and equality, and it expects Meta to fulfill its role by enforcing the law and removing content that breaches settled jurisprudence.

The Commission’s full submission can be viewed here:  

The Commission’s Social Media Charter can be viewed here: 

SOUTH AFRICAN HUMAN RIGHTS COMMISSION SUBMISSION:

Public Comment on the Display of South Africa’s Apartheid-Era Flag and Moderation of Coded Symbols and Implicit Attacks on Protected Groups

20 October 2024 Introduction

The South African Human Rights Commission (SAHRC/Commission) appreciates the opportunity to submit its comments to the Meta Oversight Board (MOB) regarding the ongoing display of South Africa’s apartheid-era flag on Facebook and the challenges associated with moderating related content. In light of South Africa’s historical context, the Commission is deeply concerned about the impact such symbols have on national unity and social cohesion, especially during politically sensitive periods like the 2024 General Election.

Our comments draw upon both local and international legal frameworks, particularly the recent judgment in Afriforum NPC v Nelson Mandela Foundation Trust and Others (Case No: 371/2020), and South Africa’s obligations under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act/PEPUDA). The SAHRC firmly believes that platforms like Facebook must adopt a zero-tolerance policy towards hate symbols—whether overt or coded—to ensure their platforms are not misused to perpetuate racial division and historical trauma.

Background

The SAHRC is an independent constitutional body established under Section 184 of the South African Constitution and governed by the South African Human Rights Commission Act, 2013 (SAHRC Act). The Commission’s core mandate is to promote respect for human rights, protect human rights, and monitor human rights observance nationwide. In carrying out this mandate, the Commission plays a vital role in upholding the principles of equality, dignity, and non-discrimination—cornerstones of South Africa’s democratic society, shaped by its history of apartheid.

The SAHRC Act empowers the Commission to investigate human rights violations and take necessary steps towards redress. Specifically, in cases of hate speech, the Commission has the authority, under Section 13(3)(b) of the SAHRC Act, to bring proceedings in court in its own name or on behalf of individuals or groups. Additionally, the SAHRC reviews government policies, makes recommendations, and may suggest new legislation to Parliament to promote human rights.

Section 9 of the Bill of Rights guarantees the right to equality, explicitly prohibiting unfair discrimination by both public and private entities on multiple grounds, including race, gender, and sexual orientation. This clause serves as the constitutional foundation for PEPUDA, which operationalizes the right to equality by providing legal mechanisms to address discrimination and hate speech. PEPUDA further strengthens the SAHRC’s role, granting it authority to act as a complainant in hate speech and discrimination cases and take these matters to court.

Thus, the SAHRC plays a pivotal role in ensuring that online platforms like Facebook align with legal standards that safeguard equality and dignity as enshrined in the Constitution and South Africa’s legal framework.

Current Jurisprudence

The Afriforum judgment sets a clear legal precedent in South Africa concerning the display of the apartheid-era flag. In its 2023 ruling, the Supreme Court of Appeal (SCA) unequivocally declared that the gratuitous public display of the apartheid-era flag constitutes hate speech, unfair discrimination, and harassment. This decision is consistent with Section 10 of PEPUDA, which prohibits hate speech in South Africa.

The Afriforum case is crucial for the MOB’s consideration as it reflects South Africa’s settled jurisprudence on hate symbols and discriminatory speech. The SCA found that symbols like the apartheid flag perpetuate racial superiority and nostalgia for apartheid, a regime classified as a crime against humanity under international law. Displaying such symbols endorses the systemic racial oppression central to apartheid.

Section 12 of PEPUDA and Hate Speech

Under Section 12 of PEPUDA, coupled with the Afriforum ruling, the display of symbols that amount to hate speech or unfair discrimination is prohibited, with exceptions only for legitimate academic, journalistic, or artistic purposes. The apartheid-era flag, according to the court’s ruling, represents a symbol of oppression that degrades the dignity of Black South Africans.

The legal framework under PEPUDA leaves no room for gratuitous displays of symbols that promote racism or discrimination. This aligns with South Africa’s constitutional mandate to uphold dignity and equality by prohibiting hate speech.

Clear Jurisprudence: No Need for Deviation

Given South Africa’s established legal stance on this issue, the Afriforum judgment provides a solid basis for content platforms like Meta to remove content violating this principle. There is no need for platforms to reconsider or deviate from this jurisprudence. The SCA has already determined that displaying the apartheid flag constitutes hate speech, and platforms operating in South Africa must adhere to this legal standard.

The Commission believes there is no justification for allowing content that has already been deemed unlawful. Such content is not only offensive but violates South Africa’s legal standards and perpetuates racial harm. Failure to act on this issue may lead to an influx of complaints and legal challenges while damaging Meta’s commitment to respecting human rights within the jurisdictions it operates.

Chain of Publication Responsibility

In addition to the Afriforum precedent, the principle of chain of publication responsibility is important. Platforms like Meta, which enable the dissemination of content, may bear legal liability for harmful material that remains on their platform, particularly when it constitutes hate speech. Under South African law, liability for defamatory or harmful content may extend beyond the original creator to intermediaries who allow its continued distribution. In the case of hate symbols such as the apartheid flag, Meta could face legal consequences for enabling the ongoing display of content that violates domestic laws. Therefore, platforms must act responsibly by removing harmful content once it is flagged or identified, or risk being deemed complicit.

Section 16(1) of the South African Constitution guarantees the right to freedom of expression for all persons. This right is fundamental to most other rights and is vital for the functioning of a democratic society. However, freedom of expression can, and often does, infringe upon the rights and interests of others. This limitation is recognized in Section 16(2) of the Constitution, which excludes hate speech from the right to free expression. As the Constitutional Court highlighted in the Qwelane v South African Human Rights Commission and Another (CCT 13/20) [2021] judgment, hate speech is the antithesis of the values advanced by free speech. While free speech promotes democracy, hate speech is destructive to it, as it undermines the constitutional project of substantive equality and social acceptance.

Furthermore, in the Rustenburg Platinum Mine v SAEWA obo Bester and Others (CCT127/17) [2018] case, the court observed that South Africa's history is marked by deep societal divisions, conflict, and racial prejudices. The judgment emphasized that although apartheid has ended, racism and racial prejudice persist. These discriminatory beliefs, rooted in the false notion of racial superiority, continue to manifest in society, not only concerning race but also in relation to gender discrimination.

Internationally, Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) obliges state parties to condemn and take immediate, positive measures to eradicate racial hatred and discrimination. This includes making the dissemination of ideas based on racial superiority or incitement to racial discrimination punishable by law, as well as prohibiting any support for racist activities, including their financing.

This legal framework—both domestic and international—underscores the importance of preventing the propagation of harmful content that incites hate, including on digital platforms, and affirms the necessity of strict content moderation to uphold the principles of equality and human dignity.

No Hierarchy of Atrocities

The Commission also draws the MOB’s attention to its October 2020 ruling, which removed Holocaust denial content from Facebook. In that decision, the MOB recognized Holocaust denial as a form of hate speech, not merely a matter of free expression or academic debate. The apartheid regime, like the Holocaust, has been classified as a crime against humanity. Therefore, Meta must adopt a consistent approach and remove all apartheid-related symbols, which similarly glorify atrocities.

There should be no hierarchy when addressing content related to crimes against humanity. The same standard applied to Holocaust denial should be applied to the display of apartheid-era symbols.

Impact on the Work of the SAHRC

As a National Human Rights Institution (NHRI) governed by the Paris Principles, the SAHRC is tasked with promoting and protecting human rights. However, if platforms like Meta allow harmful content such as the apartheid flag to remain, the SAHRC will be inundated with complaints, straining its resources and capacity. While the Commission is mandated to investigate human rights violations, it should not have to clean up after platforms that fail to moderate their content properly.

The SAHRC’s role is to proactively promote human rights, not to manage the fallout from inadequate content moderation by private platforms. Should Meta fail to address these issues, it risks overburdening the Commission, diverting its resources away from addressing broader systemic human rights concerns.

Moderating Visual Content

The Commission believes that Meta’s content moderation must account for the cultural and historical context in which symbols are used. In countries with legacies of racial oppression, like South Africa, symbols such as the apartheid flag or certain coded images (e.g., the ‘OK’ hand emoji) carry harmful connotations. These symbols, when paired with apartheid rhetoric or racist ideologies, should be immediately flagged for review.