FMF media release
17 April 2018
New Hate Speech Bill an improvement, but is still unnecessary
FMF recommends that hate speech be excluded from the bill OR that the definition of hate speech in the Constitution be used in the bill without modification
The Free Market Foundation (FMF) welcomes the changes to the controversial Prevention and Combating of Hate Crimes and Hate Speech Bill (the Hate Speech Bill) which were published last week. The original iteration of the bill, the subject of widespread public disapproval, was published in 2016 and included provisions that would have seen the end of freedom of expression in South Africa. The public engagement on this bill, and government heeding the concerns of civil society, is a welcome incident of public participation in good faith, for which government must be commended.
The Hate Speech Bill, originally intended to be a hate crimes bill, initially criminalised petty insults that ridiculed or brought people into contempt based on their occupations or beliefs. This would have meant that insults directed at the President, or directed at bad or ill-considered opinions, could land one in jail for up to three years for a first offence, and up to ten years for consequent offences. As FMF legal researcher Martin van Staden wrote, the “bill has irredeemable qualities that pose an existential threat to the continued existence of democracy” by abolishing “freedom of expression, entirely, in South Africa”. FMF Rule of Law Project chairperson, retired judge Rex van Schalkwyk, said the bill “will outlaw, with criminal penalties, the richly deserved ridicule of a variety of politicians and other such individuals. Zapiro, and others like him, will, regrettably, be silenced or imprisoned.” The bill contained no defences or exemptions.
This conception of hate speech did not align with the definition of hate speech found in section 16 of the Constitution; that is, advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. The bill’s hate crime provisions were also problematic, as they overlapped with the prohibition of hate speech to such an extent that any conviction of hate speech would have automatically meant guilt of hate crime as well.
The new bill is a marked improvement. Hate speech is now defined as publication, propagation, advocacy or communication, in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm or promote or propagate hatred, based on various grounds. This definition, despite its labyrinthine character, accords closely with that of the Constitution, albeit imperfectly. There are only four protected grounds in the Constitution – race, ethnicity, gender, and religion – whereas the bill includes fifteen protected grounds, including age, culture, and language. The FMF recommends in the strongest terms that the definition of hate speech in the Constitution be used in the bill without modification.
The new bill makes generous provision for exemptions from the prohibition against hate speech. These include artistic expression; scientific and academic inquiry; religious expression; and, crucially, commentary and reporting that is fair and accurate.
While the bill is much better than its predecessor, its hate speech provisions are still not a necessary intervention. According to Van Staden, “Existing South African law regulates hate speech adequately, and should be preferred to the introduction of a new law”.
The Promotion of Equality and Prevention of Unfair Discrimination Act already prohibits hate speech, and the Films and Publications Act empowers the Films and Publications Board to refuse classification to publications which contain hate speech. Most notably, the doctrine of crimen injuria has been used in our law to prosecute cases of hate speech, most notably the case of Penny Sparrow and more recently that of Vicki Momberg. Van Staden explained, “Crimen injuria is superior to the proposed bill because it does not merely require someone’s dignity to have been violated, but also requires that the reasonable person, in the same circumstances, would also have felt degraded. This means that the courts will not allow petty disputes where one person merely offended another, for instance, with a joke, to end up with someone spending three years in prison.”
While the bill no longer poses an existential threat to freedom and democracy in South Africa, it would be ideal for the bill to return to its original purpose – hate crimes – and for hate speech to be regulated by already-existing law.
Hate speech on whatever ground – not only those listed in the Constitution – is morally repugnant and must be condemned by all sectors of society. But South Africa must not legislate for legislating’s sake. It sets a fallacious precedent that government intervention can solve any social ill by throwing a law at it, and this, in turn, leads to a government that costs the taxpayer more money, costs the citizen more freedom, and ends up failing to solve the problem anyway. Existing law – especially the common law doctrine of crimen injuria – which can be refined where necessary, must be preferred to the introduction of new law.