By Daniela Ellerbeck, FOR SA Legal Advisor
Co-author Michael Swain, FOR SA Executive Director
Freedom of speech is increasingly under threat, with the United Nations (UN) recently having developed a strategy and action plan to combat “hate speech” globally. The UN’s stated objective for this initiative is to enhance its efforts to address the origins behind occurrences of hate speech, and to enable it to respond successfully to the impact of hate speech on societies. According to UN Secretary-General Antonio Guterres, his concern is that, worldwide, there has been a “disturbing groundswell of xenophobia, racism and intolerance – including rising anti-Semitism, anti-Muslim hatred and persecution of Christians”. He also expressed concern that social media platforms are becoming “platforms of bigotry”. While this sounds positive, a closer look makes it very apparent that there is a global trend that increasingly limits freedom of expression by expanding the definition of hate speech.
By contrast, in South Africa, section 16(2)(c) of our Constitution gives a very narrow definition of hate speech, restricting it to “advocacy to hatred based upon race, ethnicity, gender or religion, that constitutes incitement to cause harm”. There is good reason for this, because the wider you define hate speech, the more you restrict freedom of speech. In other words, the extent to which the State makes what you can say illegal inevitably limits your ability to speak or to share your opinions freely. Freedom of expression – the right to share your views in whatever form or expression, whether speech or action, you choose – is the cornerstone of any democratic system. If the State becomes unwilling to welcome different viewpoints and robust discussion, it will be unable to shape and protect a society which “belongs to all who live in it, united in our diversity” (Preamble to South African Constitution).
However, even in South Africa, we have seen the passing of legislation where this constitutional definition of hate speech has been expanded – both in terms of the prohibited grounds, but also in the way that hate speech is defined. This began with the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“Equality Act”), where the definition of hate speech (in section 10 of the Act) includes speech which “could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; and/or or to promote or propagate hatred”. Whereas the constitutional definition gives an objective standard by which hate speech can be measured, the Equality Act’s definition is open to subjective interpretation, resulting in legal uncertainty.
This trend to expand the definition of hate speech in South African legislation has continued in the form of the Films and Publications Amendment Act, 2019. Concerningly, it has been even further expanded by the Prevention and Combating of Hate Crimes and Hate Speech Bill (the “Hate Speech Bill”) which is currently before Parliament. Unlike the above-mentioned constitutional definition (which only has four prohibited grounds), the Hate Speech Bill has expanded this to cover approximately 17 such grounds and – for the first time – makes hate speech a criminal offence with a 3-year jail sentence for a first offence and 10 years for a subsequent offence.
UN’s definition of hate speech and other international developments:
Notably, there is currently no international legal definition of hate speech. Instead, international covenants, such as the International Covenant on Civil and Political Rights require states to pass laws that prohibited propaganda for war, as well as the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. However, this looks set to change because the UN has now proposed a new definition of hate speech. This is a concerning development, especially because it defines hate speech extremely widely as:
“Any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”
Importantly (and unlike the objective test for hate speech contained in the South African Constitution), the UN’s definition does not require any advocacy of hatred, or incitement of violence, for any form of expression to be considered as hate speech. Furthermore, the UN’s action plan and strategy to combat hate speech includes, amongst other things, the monitoring, data collection and analysis of hate speech trends; research on the misuse of the internet and social media for spreading hate speech; addressing the root causes and drivers of hate speech; identifying and supporting those who challenge hate speech and engaging social media companies on steps they can take to support UN principles and action to address and counter hate speech. The last mentioned action is only likely to encourage the unofficial censorship trends of “big tech” companies like Twitter, Facebook and Google, who have been deliberately throttling back or cancelling outright views which do not agree with their policies, which are increasingly antagonistic to conservative values.
This wide UN’s definition therefore poses a serious threat to freedom of expression internationally. It is very likely that many countries will adopt this as their national definition of hate speech, especially as the UN intends to allocate resources to support countries with capacity building and policy development to implement its aims to combat hate speech. The UN’s definition and its roll-out strategy are worded in very imprecise and wide terms, so it can basically mean anything. Its implementation can therefore take any (unforeseen) form – so even if it does not currently explicitly call for the criminalisation of hate speech, this could well end up being its practical effect.
Given the above, the UN’s definition of hate speech will certainly infringe on freedom of expression. This is especially concerning from a religious freedom point of view, as their definition fails to include any exception protecting the expression of religious beliefs. It is thus totally possible that, if countries do adopt this wide definition of hate speech, it will be used to reinforce the dominant narrative to target voices of opposition and dissent, silencing those minorities who hold to different views.
The trend to limit freedom of expression and opinion accelerated this month in the UK as well. Their Law Commission (which develops policy guidelines which typically form the basis of future legislation) has proposed criminalising ‘hate speech’ in homes in England and Wales. It has laid out its plans to lower the threshold for hate crimes to be committed, including criminalising so-called “hate speech” – even in private dwellings. There is currently a “dwelling defence” in law which protects conversations in the home from police intervention, but this would be abolished. The result would be that a comment made over the dinner table about a huge range of topics, could lead to a prison sentence.
The Constitutional Court’s judgment in the Qwelane case will be a landmark for freedom of speech:
Although these international developments are concerning, the extent to which they may influence and affect our own hate speech laws in South Africa, will soon be settled by the Constitutional Court. As previously written, the Court will shortly release their judgment on the long-running case of Jon Qwelane versus SAHRC. While there is no doubt that the UN’s definition and action plan will result in increasing international pressure for wider hate speech laws in the future across all member states, the extent to which this may affect South African law will greatly depend on what the Constitutional Court decides.
The heart of the Qwelane matter is a challenge to the definition of hate speech in the Equality Act, which is wider than the Constitution’s. Should the Court decide that this wider definition is unconstitutional – and therefore illegal and unenforceable – this will not only bolster freedom of expression in general but will also prompt a review of all other subordinate legislation where wider hate speech definitions have been adopted. FOR SA’s sincere hope – for the sake of our religious freedoms, and for an open and free democracy that values the importance of freedom of expression – is that our highest Court will reinforce the original constitutional definition and not be swayed by any other (popular or political) considerations.
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