PEN SA Board Member Pierre de Vos shares insights on Hate Speech Bill

PEN SA board member, Prof Pierre de Vos, spoke to PEN SA Research Associate, Rowan Morar, about the implications of the Prevention and Combating of Hate Crimes and Hate Speech Bill for the right to freedom of expression. Prof de Vos’ insights, which informed PEN SA’s written submission on the Bill to the Parliamentary Portfolio Committee on Justice and Constitutional Development, are outlined below:

The Ambiguous Definition of Harm and the Asymmetry of Power Problem

Clause 4 of the Prevention and Combating of Hate Crimes and Hate Speech Bill defines the offence of hate speech as follows:

Clause 4(1)(a) provides that:

any person who intentionally publishes, propagates or advocates anything or communicates 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 or to promote or propagate hatred based on age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality or migrant or refugee status, race, religion, sex, which includes intersex or sexual orientation, is guilty of the offence of hate speech.

The Bill’s definition of harm as “any emotional, psychological, physical, social or economic harm” presents two problems. The first pertains to the substantive nature of harm, i.e. what constitutes harm; and by implication, what is included and what is excluded from the definition anticipated by the Bill? Without the qualification of “significant” or “substantial,” the Bill’s conception of harm is too broad and ambiguous.

This has the potential to include a substantial amount of political speech, which may be reasonably construed as intended to inflict psychological harm or distress on political opponents, defined in some instances on the basis of race, sex or gender, religion or sexual orientation. For example, telling a religious person that God does not exist or that religion is a fantasy may well, depending on the context, be construed as intended to harm a person with religious convictions – though the harm may be minor.

The broad scope of harm further makes it possible to reasonably interpret ‘harm’ such that it protects hate speech from being exposed while simultaneously prohibiting it. For example, Adam Catzavelos’ public dissemination of the video in which he uses the ‘k-word’ may be deemed to cause emotional, psychological, and social harm.  However, the public shaming Catzavelos experienced in response may, in terms of this formulation, equally be argued to cause emotional and psychological harm. In this context merely mentioning Catzavelos’ video could potentially constitute further harm, notwithstanding his critics’ sentiment that in this instance the harm is warranted.

The second problem concerns the asymmetry of power relations in society. The Bill assumes the existence of a symmetrical power relationship between protected parties. This ignores the disparity in the severity of harm experienced by different groups, depending on their social or economic position; it further denies that social, economic and political hierarchies might influence the degree of harm experienced for the same offence. This points to the difficulty of crafting law that captures the complex and nuanced character of harm.

Consider, for example, a woman who asserts that “men are trash,” who receives a retort from a man consisting of abusive, misogynistic epithets. The current formulation of the Bill may consider these equivalent offences, notwithstanding entrenched patriarchy and systemic gender disparities, which place woman in a socially diminished position to men. The effect of the reasonable interpretation of this definition of harm may thus be to silence social groups with marginal power.

The primary concern here pertains to how this Bill will be interpreted in relation to criticism against those enjoying considerable power, however construed. There is no apparent and clear relationship between reasonable interpretation of the Bill and the consideration of asymmetrical power relations. There are no definitions of racism, sexism and homophobia, an omission that reflects this asymmetry problem.

The Limitation on Speech

‘Harmful’ may be assumed to mean ‘the effect of causing harm.’ However, this broad definition would excessively and unreasonably limit speech. For example, the assertion by a black person that a white person “stole the land” could reasonably be interpreted to constitute a threat of harm on the grounds of an imputed desire for restorative or retributive justice. A statement of fact, such as, “this land was appropriated under Apartheid by state force,” could also be  reasonably construed as an offence under this Bill, since the statement may be interpreted as conveying a desire for the return or redistribution of the land to its disenfranchised former black owners, (i.e. incitement of harm on the basis of racial, social origin and economic grounds mean the case could also be made for emotional and psychological harm in view of the potential shame attached to this inheritance).

It is PEN SA’s contention that the ambit of this Bill is excessive:  for example, alleging on a social media platform that someone is sexist may potentially constitute an offence on several grounds (gender, gender identity, emotional, psychological).  Increasing the qualifying threshold from “any harm” to “significant or serious harm” would mitigate the broad, over-reaching and potentially hate-speech enabling function that the current definition of harm might perform, while also addressing the asymmetry of power between protected groups.

The Contradiction of Calling Out Hate Speech and the Social Media Problem

Provision 4.1. (b) states:

(b) Any person who intentionally distributes or makes available an electronic communication which that person knows constitutes hate speech as contemplated in paragraph (a), through an electronic communications system which is—

(i) accessible by any member of the public; or

(ii) accessible by, or directed at, a specific person who can be considered to be a  victim of hate speech, is guilty of an offence.

If we return to the Catzavelos video: on the current formulation, a third party sharing this video could be construed as guilty of an offence. If the Bill is concerned with preventing and prosecuting hate speech, then the intention motivating distribution of the electronic communication should be a condition of the determination of an offence, else it may have the effect of contradicting the stated purpose of the Bill.

A related problem can be found in Provision 4.2. (c):

(2) The provisions of subsection (1) do not apply in respect of anything done as contemplated in subsection (1) if it is done in good faith in the course of engagement in—

(c) fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution of the Republic of South Africa, 1996

Who is contemplated in the category of reporter: does the “fair and accurate reporting or commentary in the public interest” extend to social media engagement? Moreover, there is no distinction between distribution in provision 4.1. (b) and reporting in 4.2. (c), especially as it pertains to social media.  Considering the decision in Flocutt (Pty) Ltd v Eisenberg (3592/2016) to classify any social media post as a publication, this would make social media posts susceptible to prosecution in terms of defamation as well as hate speech under this Bill.

Distributing the Catzavelos video, regardless of the intention behind it, wouldn’t necessarily be considered in the interest of the public. If the person who distributes is not considered a reporter, then they would be committing an offence. As it currently stands, there is no clear definition of who is considered a reporter. The democratic power of social media consists of the unilateral ability of individuals to comment or report on any issue, thereby lowering the barrier to entry as a widely circulated voice in the public sphere. This power could be severely hampered if the interpretation of ‘reporting’ is restricted to established media houses and public institutions. It also compels us to question whether an independent journalist qualifies as a reporter under this formulation. Without a definition of reporting, it is possible that both journalists and average citizens could be censored through threat of prosecution. How these will be interpreted remains to be seen.

The Absolute Power of Unelected Officials to Amend the Law

Provisions in section 7 confer upon unelected officials absolute discretion concerning “the circumstances in which a charge in respect of such an offence may be withdrawn or a prosecution stopped.” The power to amend the law is conferred upon the National Director of Public Prosecutions in consultation with the Director-General: Justice and Constitutional Development and the National Commissioner of the South African Police Service.  The Bill implicitly affords these officials the power to redefine altogether the definition of hate crime and hate speech in the future.

Moreover, these officials would have the power to veto the prosecution of a hate crime or hate speech for vulnerable groups, as defined by the respective offices;  which could, for instance, determine that vulnerable groups  aligned with politically partisan agendas are to be excused of hate crimes.

The Constitutional Court’s decision in Dawood v Minister of Home Affairs has set the precedent for rejecting absolute discretionary powers unrestrained by legal principles, factors or criteria invested in institutions outside of the Legislature. This Bill circumvents the separation of powers, unconstitutionally vesting legislative power outside the Legislature.

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