New laws to make hate speech a crime in South Africa – including on Twitter, WhatsApp and other social media
The National Assembly has passed the Prevention and Combating of Hate crimes and Hate Speech Bill, which aims to clamp down on various forms of “hate speech” in South Africa.
The bill was first introduced to the National Assembly in 2018 but lapsed in 2019 before being revived the same year. The bill had been put on hold pending two Constitutional Court judgments.
Broadly, the bill seeks to address what the government noted is an “increasing number of incidents motivated by prejudices, in the form of hate crimes and hate speech”, and to assist people who are victims of and harmed by such speech.
Specifically, if passed into law, the bill will create the offences of hate crimes and hate speech and put measures in to prevent and combat these offences.
Despite several ongoing significant amendments since being introduced, many controversies continue to surround the proposed law. The biggest hangup over the regulations is the large number of characteristics which would be covered under ‘hate speech’.
Under the new laws, hate speech will be defined as a clear intention to be harmful or incite harm, or promote or propagate hatred based on these characteristics:
- Race;
- Gender;
- Sex, which includes intersex;
- Ethnic or social origin;
- Colour;
- Sexual orientation;
- Religion;
- Belief;
- Culture;
- Language;
- Birth;
- Disability;
- HIV status;
- Nationality;
- Gender identity;
- Albinism; or
- Occupation or trade.
On top of the long list of characteristics that could be considered in hate crime or hate speech cases, the bill also covers various channels through which these crimes could be committed.
Communicating hate speech, in particular, covers any: display; written, illustrated, visual or other descriptive matter; utterance; representation or reference; or an electronic communication. This means the new laws will explicitly cover social media and online communications.
Opponents and critics of the bill have highlighted the broad and vague nature of the targeted characteristics and the channels through which the so-called ‘hate speech’ can be communicated, leaving the laws open to abuse.
A key example is how ‘belief’ is protected under the laws – and many beliefs can be regarded as being in conflict with other protected characteristics.
The bill tries to skirt around this by exempting certain forms of communication from being regarded as hate speech – such as religious expression – so long as the speech does not “advocate hatred that constitutes incitement to cause harm” based on the characteristics.
Critics have not been convinced, however.
Some extreme examples of how the laws could be twisted were given when the bill was first published – such as basic insults based on someone’s age or occupation being regarded and hate speech and sending someone to jail.
The bill makes some provision for this by including the need for a victim impact statement, which should indicate the extent of the harm caused by the alleged hate speech – but the definition of “harm” is equally as broad.
For the purposes of the laws, 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 new laws define hate crimes and hate speech as follows:
Hate crime
A hate crime is an offence recognised under any law – excluding the common law offence of crimen injuria – committed by a person who is motivated by their prejudice or intolerance towards the victim, the victim’s family member or the victim’s association with or support for a group of persons who share one or more of the aforementioned characteristics.
- The crime is based on one or more of the actual or perceived characteristics.
- Any person who commits this offence is guilty of a hate crime and liable on conviction to a fine or imprisonment for a period not exceeding eight years or to both a fine and imprisonment.
- The criminal record of a person who has been convicted must explicitly record the underlying offence as a hate crime.
- Any prosecution in terms of this section must be authorised by the Director of Public Prosecutions.
Hate speech
The crime of hate speech is any person who intentionally publishes, propagates, advocates, makes available or communicates anything to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm; and promote or propagate hatred, based on one or more of the grounds.
This crime is notable in that it includes any person who intentionally distributes hate speech through an electronic communications system which is accessible by any member of the public; or accessible by, or directed at, a specific person who can be considered to be a victim of hate speech.
The bill states that these laws do not apply if the communication is done “in good faith in the course of engagement”.
This relates to the following:
- Artistic creativity, performance or expression;
- Academic or scientific inquiry;
- Fair and accurate reporting in the public interest or the publication of any information, commentary, advertisement or notice;
- Interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings, that does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds.
The Director of Public Prosecutions must authorise any prosecution in terms of this section.
The same penalties apply if convicted.
The bill has been opposed by the Democratic Alliance, the Freedom Front Plus and the ACDP, who have argued that the regulations would be used to limit freedom of speech and abused by politicians. They argued that the bill is addressing something that is already protected by the Constitution.
The bill was adopted by the National Assembly, 237 in favour and 79 against.
The full bill can be seen below:
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