Internet censorship? A look at the Films and Publications Amendment Act's criminalisation of "hate speech"

The Films and Publications Amendment Act, 2019 (“the Amendments”) came into effect on 1 March 2022.

The Amendments changed the Films and Publications Act, 1996 (“the Act”) and, amongst other things, criminalised the distribution of hate speech. In this article, we break down what this means, and the concerns it holds for freedom of (religious) expression.

What is the Act about?

The Act provides for the classification of certain films and publications, but its original context does not fit in with our new, digital society where we no longer rent / buy hard copies of almost anything, but rather stream most of our content using the internet. The Act also did not cater for a world where individuals generate their own content that can become “viral” - such as, for example, text messages, voice notes, images and videos, which they can then share with the world via social media.

The Amendments, therefore, seek to bring the Act in line with our current, online era.

What do the Amendments do?

The Amendments have been labelled by some as the “internet censorship law”, but what do they actually do? And what do they mean for the average person on the street who posts and sends a variety of messages, videos etc. daily to their different family members, friends and/or other contacts? The Amendments insert numerous definitions into the Act. Amongst these are definitions for “internet”, “commercial online distributor” (the intention here is no doubt to refer to businesses such as Netflix, Disney Plus, Amazon Prime etc.), “harmful” and “hate speech”. Importantly, the Amendments also insert sections 18H and 24G into the Act. Section 18H prohibits any person from distributing (including through the internet and social media), any film or publication which amounts to propaganda for war, incites imminent violence or advocates hate speech. Section 24G makes it an offence to do so and imposes a fine of up to R150 000 and/or a two (2) year jail sentence on anyone who knowingly does so. (This no doubt is the reason that some have labelled this law the “internet censorship” law.)

The Amendment’s criminalisation of hate speech: The Amendments define “hate speech” as “any speech, gesture, conduct, writing, display or publication, made using the internet, which is prohibited in terms of section 16(2) of the Constitution of the Republic of South Africa, 1996, which propagates, advocates or communicates words against any person or identifiable group, which words could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against the said person or identifiable group.” In simplified terms, this means any expression (think video, voice note, message, or image) which is constitutionally unprotected, that a reasonable person could understand to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against any person or identifiable group. We see, therefore, that all factors need to be present. Furthermore, how harm and harmful are defined is also very important. (The Amendments define them as “causing emotional, psychological or moral distress to a person”.)The Amendment’s definition of hate speech is reminiscent of the hate speech definition in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“the Equality Act”).

For this article, it is sufficient to say that in its Qwelane judgment the Constitutional Court had rewritten the Equality Act’s definition of hate speech to read as follows: “Subject to the proviso in section 12,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”. It should be pointed out here, that the big difference between the Equality Act and the Amendments is that the Equality Act is a civil remedy that does not create criminal liability (i.e., you can be ordered to pay a fine and apologise, but do not commit a crime and will not go to jail and/or have a criminal record).

On the other hand, the Amendments do criminalise the distribution of hate speech.

Problems with the Amendments:

Of concern is the Amendments’ definition of harm, because “causing emotional, psychological or moral distress to a person” is much wider than “deep emotional and psychological harm that severely undermines the dignity of the targeted group” (own emphasis). (The latter being our highest Court’s definition of harmful, for the purposes of hate speech in its Qwelane judgment.)

The Amendments also fails to define hate, arguably the quintessential element for a crime of hate speech, even though the Constitutional Court endorsed three (3) Canadian cases’ definitions of hatred in Qwelane (see footnote 100 in the Qwelane judgment). These three (3) cases’ definitions can be amalgamated as follows “’hatred’ means ‘strong and deeply-felt emotions of enmity, ill-will, detestation, malevolence and vilification against members of an identifiable group, that implies that members of that group are to be despised, scorned, denied respect and subjected to ill-treatment based on their group affiliation.’”

Although section 16(2) of the Constitution is mentioned in the Amendments’ definition of “hate speech”, arguably the only effect this would have is to provide grounds for arguing that the Amendments’ 18 “identifiable group characteristics” must be limited to the Constitution’s four (4) - race, ethnicity, gender and religion.

As a result of the wider definition of harm and failure to define hate, the Amendments’ prohibition is wider than the Constitutional Court’s and the Equality Act's. (The Court’s definitions are binding upon all other laws, such as the Amendments.)This is especially concerning that the Amendments criminalise the distribution of hate speech, imposing criminal liability and sanctions (e.g., jail time).

We now, therefore, have the untenable legal situation, where it is easier to be found guilty of a crime than of a civil offence.

Does this mean anything for freedom of (religious) expression?

Religious freedom (section 15 of the Constitution) encompasses the right to freely share your beliefs with others without fear of persecution and/or prosecution. This is a right that is also protected by section 16 of the Constitution (freedom of expression). The Amendments criminalise any expression which could be understood by a reasonable person to demonstrate a clear intention to cause or incite emotional, psychological or moral distress and promote or propagate hatred against any person or identifiable group.

Although “emotional, psychological or moral distress” is wide, and this is concerning, because it opens the possibility for offensive speech to be caught in the definition, there is the saving grace that this needs to be coupled together with promoting / propagating hatred against someone / a group, which although undefined in the Amendments has been defined in Qwelane. This makes the possibility of the Amendments being interpreted to include the expression of unpopular or even offensive beliefs, unlikely. In our view, it is therefore unlikely that the Amendments will be interpreted to include the expression of unpopular or even offensive beliefs. In the event that this was the case, the Constitutional Court’s Qwelane judgment expressly says that such expression “does not constitute hate speech”. This will have to be considered by the prosecution when considering whether or not to prosecute someone under the Amendments, or the Magistrate / Judge when deciding whether to convict someone.