Fines and jail time for hate speech on WhatsApp, Facebook and other social media in South Africa

The National Council of Provinces (NCOP) has passed the Prevention and Combating of Hate Crimes and Hate Speech Bill.

The Bill was first introduced to the National Assembly in 2018 but lapsed in 2019 before being revived the same year. Two Constitutional Court judgements also halted the Bill’s progress, but the National Assembly eventually passed it in March of this year.

The Bill aims to address what the government sees as an increasing number of incidents inspired by prejudices in the form of hate crime and hate speech.

Section 3 of the Bill states that a hate crime is an offence committed where the offender is motivated by prejudice or intolerance towards a victim of a crime due to specified or perceived characteristics of the victim.

These characteristics include:

• Race;
• Gender;
• Sex, which includes intersex;
• Age
• Ethnic or social origin;
• Colour;
• Sexual orientation;
• Religion;
• Belief;
• Culture;
• Language;
• Birth;
• Disability;
• HIV status;
• Nationality;
• Gender identity;
• Albinism; or
• Occupation or trade.

Section 4 of the Bill states that hate speech is the intentional publishing or communication of anything that can incite harm or promote based on several grounds, including age, sexual orientation and race.

Expressing hate speech includes any written, illustrated, visual display; utterance; representation or reference; or an electronic communication.

The new laws cover social media and online communications.

The Bill also outlines the penalties, including fines and imprisonment, for those convicted of either offence.

However, the NCOP did have amendments to the Bill and will send it back to the Portfolio Committee on Justice to consider such amendments.

The Bill is back with the National Assembly for concurrence.

Criticism

The Bill has not been without criticism, with opponents highlighting the broad and vague nature of the targeted characteristics and the ways in which hate speech can be expressed, allowing the laws to be abused.

For instance, ‘belief’ is protected as being under the laws – but many beliefs may be seen as being in conflict with other protected characteristics.

The Bill exempts some forms of communication from being seen as hate speech – including religious expression – as long as the speech does not “advocate hatred that constitutes incitement to cause harm.”

However, critics have not been convinced as the Bill can be easily twisted, with a simple insult to one’s profession possibly being deemed as hate speech and sending someone to jail.

Although the Bill makes a provision for this by requiring a victim statement, which indicates the level of harm caused by hate speech, the definition of ‘harm’ is likewise broad.

According to the Bill, ‘harm’ means: “substantial emotional, psychological, physical, social or economic
detriment that objectively and severely undermines the human dignity of the
targeted individual or groups.”

The Bill has faced opposition from the Democratic Alliance, the Freedom Front Plus and the ACDP, who argued that politicians could abuse the new laws. They also claimed that the Bill addresses something the Constitution already protects.

The full Bill can be seen below:

Read: New rules for sharing content on WhatsApp, Facebook and other online platforms in South Africa