Hate Speech and Legal Overreach in South Africa by Jacques Rousseau
31 Oct 2016
The South African Department of Justice and Constitutional Development has published the draft Prevention and Combating of Hate Crimes and Hate Speech Bill for comments before 1 December 2016. PEN South Africa will be making a submission on the draft Bill and will publish it in the coming month.
The New York Times has written about the draft Bill in a piece titled “Jail Time for Using South Africa’s Worst Racial Slur?” and the Mail & Guardian have published a piece titled “Hate speech is not a hate crime“.
The following article on the draft Bill was written by PEN SA member Jacques Rousseau and first published on his website Synapses.co.za.
By PEN SA member Jacques Rousseau
The intentions motivating the draft South African Hate Crimes and Hate Speech Bill are – as far as I can tell – entirely noble, but perhaps not entirely sound.
If you don’t know about the Bill, you can read Justice Minister Michael Masutha’s justification for it on Daily Maverick, in which he says that:
It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and provide a means to monitor efforts and trends in addressing hate crimes.
The Bill is obviously (at least in part) a reaction to cases like that of Penny Sparrow and Chris Hart. As I argued at the time, though, there’s a difference between hateful speech and hate speech, and I continue to believe that a distinction worth preserving.
This Bill seeks to define hate crimes as offences committed via motives premised
on the basis of that person’s prejudice, bias or intolerance towards the victim of the hate crime in question because of one or more of the following characteristics or perceived characteristics of the victim,
and goes on to list a broad range of characteristics that includes race, gender, sex, belief, religion, culture and “occupation or trade”. Public comment is invited until December 1, and you can see how and where to submit your comment in the first link above.
I don’t dispute for a moment that some South Africans are guilty of gross insensitivity, directing casual insults to others, and often of bigotry. As I’ve said many times in the past, I also can’t dispute that I (as a white male) would experience far less of this – typically none of this – than the vast majority of our population is susceptible to.
Nevertheless, I see four broad problems with the Bill. First, it might be accused of overstating the problem. This is an empirical question, and as far as I’m aware, we have no good data on how frequently these “hate crimes” occur (as a separate issue to what the threshold should be for when legislation becomes justified).
Second, it’s arguably both legal overreach and somewhat redundant. On the redundancy point, much of what it seeks to legislate seems to already be addressed in the Constitution or the Equality Act. On the overreach point, I’m concerned that too much is prohibited, and that the courts will waste lots of time on frivolous cases.
This is because read literally, the Bill would prohibit much satire (and I mean real satire, rather than fake news). On the “occupation and trade” clause, would jokes about lawyers, politicians – or even philosophers! – not be something you could claim to be sufficiently offended by that you deemed the matter worthy of a court’s attention?
Given that “harm” is defined as including “any mental, psychological, physical or economic harm”, the bar for claiming that you’re a victim of a hate crime seems absurdly low.
Which brings me to the third point, namely that the Bill could be accused of infantilising the population. One argument for free speech is that it’s precisely exposure to offensive speech that, ultimately, allows us to develop the resources to cope with asshats who choose to be offensive.
On my view, there are some things “up with which we should not put”, so I’m no free speech fundamentalist. Nevertheless, I believe that our default stance should be in favour of free speech, and that we should only restrict it when there is no other option.
Hate speech is perhaps one such case, yes, but if our definition of hate speech is sufficiently broad, the harms from the general chilling of speech might well outweigh the harms experienced by individuals (on aggregate, obviously, rather than for those who are subjectively harmed by instances of hate speech).
To repeat a point made above, that’s what this law seems to do – to define hate crimes too broadly, where those individual victims are for the most part already covered by existing laws, and where covering those that are not seems to require a more conservative remedy that this.
Finally, just as the Equality Act is arguably unconstitutional, this Bill would appear to suffer the same deficits in how it radically redefines what counts as hate speech in making the broad idea of “harm” sufficient to turn a speech act into a hate crime.
Interestingly, the Minister cites the example of Canada as one of the jurisdictions whose legislation on hate crimes has informed this Bill. Perhaps the Minister isn’t aware – or I’m misreading something – but the electronic communications sections of our proposed Bill look rather similar to Section 13 of the Canadian Human Rights Act, which was repealed in 2013 after being found to be unconstitutional.