Proposed Hate Speech Bill Will Silence Democracy for All
The Hate Speech Bill 2018 – currently before the Select Committee on Security and Justice – poses a real threat to the right to freedom of expression guaranteed by Section 16 of the Constitution.
Last week, the FW de Klerk Foundation attended a virtual conference hosted by the Free Speech Union of South Africa on the Criminalisation of Hate Speech. The conference was moderated by FSU SA Director Sara Gon with guest speakers: Advocate Mark Oppenheimer of the Johannesburg Bar, Professor Anton Harber, Executive Director of the Campaign for Free Expression, and Cynthia Stimpel, Executive Director of Whistleblower House.
Adv. Oppenheimer highlighted the importance of freedom of expression in maintaining a genuine democratic system. He noted the role of this right in guaranteeing freedom of religion, belief, and opinion, and free political activity.
He went on further to state that hate speech was already successfully dealt with prior to the introduction of the Hate Speech Bill by the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (‘the Equality Act’). Although this act provided for a civil remedy rather than criminal sanction, it had been used by our courts to combat hate speech.
The Equality Act allows private citizens to lodge complaints against perpetrators of “hate speech” with penalties that could include an apology or financial compensation.
Under the Equality Act, there have been notable cases where individuals have relied on the Act to address instances of hate speech. Two prominent cases that have received attention and have successfully relied on the Equality Act are the Qwelane and Masuku cases. In both cases, the Equality Court and High Court, respectively, ordered an apology and a fine or damages.
In order for a complaint to be lodged under the Equality Act, certain requirements must be met. The speech in question must promote or propagate hatred or discrimination against a person or a group based on a number of grounds, including race, gender, religion, ethnic or social origin. It must also be demonstrated that the speech could reasonably be construed to demonstrated a clear intention to be harmful or incite harm against that group.
The Hate Speech Bill will create the statutory crime of hate speech. Alarmingly, it would then make it far easier for a person to be found guilty of the crime of hate speech and be sent to jail for up to eight years, than for someone who commits a civil offence (under the Equality Act or crimen injuria) to be ordered merely to apologise.
Although the current version – as noted by Prof Harber during the discussion – is a marked improvement on the original 2018 version, it could still lead to the very real possibility that a person might be jailed for up to eight years for the new, much more broadly defined crime of hate speech.
He cautioned that the ambiguities in the Bill could make it difficult to determine precisely what can be considered as hate speech. This is due to the Bill’s broad definition of “harm” which includes any “emotional, psychological, physical, social or economic detriment that objectively and severely undermines the human dignity of the targeted individual”. What is meant by “social harm” and where the bounds of “emotional” harm begins and ends is left open to interpretation.
This subjectivity towards a criminal offence would make people very wary of expressing any personal views that might upset anyone from the 10 categories of potential victims. In so doing, the Bill could lead to self-censorship among people, media, and internet platforms, as they seek to avoid any risk of prosecution. This would undoubtedly stifle free debate on a wide range of topics, and would seriously limit the constitutional right of individuals to express their opinions and ideas with very serious consequences for our constitutional democracy.
Although the Bill does provide exemptions for artistic creativity, academic or scientific inquiry, fair and accurate reporting and religious proselytising – its draconian limitations will impede the ability of individual citizens to exercise their rights to free speech and to meaningful participation in the marketplace of ideas. Adv. Oppenheimer opined that the Bill “came out quite opportunistically shortly after the infamous Penny Sparrow Tweet and was seen as an impetus to produce this piece of legislation, under the guise of stopping racism.”
Prof Harber warned that by limiting free speech, the Bill would only serve to drive hate speech underground, which could lead to sudden eruptions of violence and a missed opportunity to tackle the issues of racism and xenophobia which plague unprotected ethnic groups. He stated that, “If you don’t have information made available to you through free speech, you miss out on opportunities to see who the real threats are to society and drive those views underground, which would possibly lead to an eruption of violence, as opposed to the mere sprouting of words.”
Furthermore, the Bill could prove detrimental to whistleblowers. As pointed out by Cynthia Stimpel, whistleblowers need protected free speech rights to expose corruption, wrongdoing and other forms of illegal activity – especially when the perpetrators are in powerful positions. Accordingly, the threat of imprisonment under the Bill for “harmful” speech, could have serious consequences for the fight against corruption and the overall health of democracy in South Africa.
Whilst the FW de Klerk Foundation supports the need to combat racism and related intolerance including: Islamophobia, antisemitism, queerphobia, xenophobia; it agrees with Ms Gon that “free speech is the best weapon against hate speech.”
The promise our Constitution makes to all South Africans is that regardless of immutable characteristics such as race, we all have equal rights and freedom to participate in our society by freely expressing our views. In pursuit of this ideal, we believe that Government must take an uncompromising stance against racial rhetoric and racial violence by using the legal instruments already at its disposal.
The Hate Speech Bill is not the solution to racism and discrimination in the country. It will simply weaken our democracy by making it easier for those in positions of economic, social or political power to silence critics.
Watch the full discussion here.
The Hate Speech Bill is currently open for public comment. If you feel strongly about this issue, you can submit your thoughts to HateCrimesBill9B-2018@
Issued by FW de Klerk Foundation, 9 May 2023. Updated: 11 May 2023
