In a multi-cultural and divided society, hate speech is probably one of the most deconstructive crimes that can be committed.

Hate speech is a tool most often used to divide people and to cause conflict. However, one must always have clear sight of the distinction between hate speech and exercising one’s right to freedom of expression (section 16(1) of the Constitution) which, of course, is limited. Hate speech, incitement of violence, and propaganda for war, are not protected in terms of section 16(2) of the Constitution.

Earlier in 2016, Parliament proposed the new Prevention and Combating of Hate Crimes and Hate Speech Bill.

In this Bill the legislature intends to criminalize hate speech and seemingly related acts. This goal of the legislature is honourable, and even morally sound. However, the problem arises with the wording of the Bill and the definition given to hate speech. The Bill sets out iron-fisted limitations on the right to freedom of expression, and the act of hate speech is so broadened that it is in fact quite precarious.

We all know saying things to people can get you into trouble – for instance, with defamation (where you intentionally harm the reputation of another) and crimen iniuria (where you intentionally harm the dignity of a person). But the Bill takes this to a whole new level. Have a look:

Section 4(1)(a) of the Bill states:

Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that –

(i) advocates hatred towards any other person or group of persons; or

(ii) is threatening, abusive or insulting towards any other person or group of persons,”

And furthermore:

demonstrates a clear intention, having regard to all the circumstances, to –

(aa) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or

(bb) stir up violence against, or bring into contempt or ridicule, any person or group of persons,

Then there are grounds upon which one is not allowed to do so, which includes:

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

In short, hate speech can be anything. The normal criteria of hate speech, being the inciting of violence and hate, has now been broadened to ‘insulting’, ‘ridicule’, or ‘bringing into contempt’, not even an individual, but a numberless, faceless group of people who are ‘insulted’. We enter into a twilight zone when we read the definition of a “victim” in the Bill, which includes a juristic person (for example, a company). The intention of this definition is for situations where companies are targeted because they are owned by, for example, Muslims or homosexuals. However, the vagueness of it is striking.

This Bill also includes any electronic communications (section 4(1(b)) that transgresses any of the abovementioned vague concepts, thus including the internet and social media. According to section 4(1)(c), the mere act of making it available (i.e. sharing it privately) renders one guilty.

The underlying idea of this Bill, being to stop the very malicious attacks on, for example, homosexuals and intersex persons who are met with extreme violence and corrective rape, is most honourable and, much needed. I am not commenting on the validity of the protection the Bill strives to give, but I believe that this Bill is, in some instances, overzealous.

I will immediately concede that fostering hate, inciting violence, threatening and abusing a group of persons on arbitrary grounds, is intolerable. However, the Bill includes acts that can be a great limitation of free speech. It is important to note that the Act does not define what “insulting”, “bringing into contempt”, or “ridicule”, means. It is therefore prudent to explore what these terms would ordinarily mean.

“Insult” is defined by the Oxford Dictionary as “to say or do something that offends” and “insulting” is defined as “causing or intending to cause someone to feel offended.” Does this mean that offending someone becomes a criminal offence? How is it measured? Is it how the person feels about what you said? What people find offensive, is immeasurably varied. By using these vague concepts the sublimity the Bill’s purpose is ridiculed in the application thereof.

To be fair, the Bill states that the insult must be coupled with the intent to “bring into contempt” or “ridicule.” “Contempt” is defined as “feeling like something is not worthy of respect” and “ridicule” is defined as “unkind comments to make fun of or makes them look silly.” Feeling uncomfortable, yet?

One might ask, “well, is it not something to strive for that we should respect each other?” I will answer yes, but making the failure to do so a criminal offence, is extreme. I agree that racist comments and ridiculing people arbitrarily on the base of race, sex, and religion is wrong, but this Bill goes too far. The Bill gives no defence such as truth, public interest, or even jest in the manner that the criminal offence of defamation does. Defamation or crimen iniuria needs to have a specific victim, but the Bill defines the victim as any person belonging to any group who is insulted by your comment. You might not even know about it, until the police comes knocking on your door. This broadness is aimed at instances like Penny Sparrow’s comments, which is obviously wrong. But including ridicule and insult to the repertoire of hate speech, without any defence, seems a too tight rein on freedom of speech. Therefore, once again the Bill is sublime in purpose, but ridiculous in practice.

One must also take into consideration that the culture of the internet is mostly based on ridicule and satire that will most likely be offensive to a lot of people. Take, for instance, communities like 9GAG, and even on YouTube there is content ridiculing groups of people – not maliciously, but for an honest laugh. Consider the example of the internet trend of “Vines” (humorous six-second videos) most of which are based on stereotypes, but are quite funny. There is content joking about white, black, Hispanic, Chinese, and Indian culture, and the stereotypes surrounding them, as well as joking about the actions of men versus women. I believe that some might find it offensive, but a majority will take it for what it is: a joke. But this Bill can potentially make the making, or even the sharing of such content, criminal.

Truth is not a defence in the Bill, and, as this crime is not a common law offence, those remedies don’t apply. One must keep in mind that “intent” in criminal law also manifests in a form called dolus eventualis, meaning that if you foresee the possibility that your remark will insult and cause contempt, and you accept it, you will have the intent. Yes, you have criminal defences at your disposal, like provocation (which is not an easy defence), necessity, private defence, etc., but you have to stand in court and hire a lawyer to defend yourself for something you said.

Therefore, one of the crucial issues with the Bill is that it proposes no limit on criminal liability such as truth, public interest, fair comment, or jest. What then happens to satire if you are not allowed to make jokes? What if the insulting fact is absolutely true? It is in this sense that this Bill poses a great threat to freedom of speech in South Africa.

One cannot help but to compare our possible future with that of the United States, where their First Amendment provides for almost-unchecked freedom of speech. The underlying philosophy of the United States is that you should be free to speak you mind, and if it offends someone, they are just as free to retaliate with their free speech, and the most convincing argument will be accepted. Why is a different approach needed in South Africa?

Insulting or ridiculing someone, even on the basis of the abovementioned grounds, is a very different thing from promoting hate and violence. Treating these instances as the same thing, and punishing them in the same manner, seems to me that the punishment does not fit the crime. What I also find troubling is that for insulting and ridiculing someone (as opposed to promoting violence and hate), you will be met with the full weight of the criminal justice system in a similar manner as when promoting hate and violence, and this is very unfair for the lone individual against the machinery of the State.

I have no doubt that the constitutional validity of this Bill will be challenged almost as soon as it takes effect, but that entails someone paying inevitably-exuberant legal fees to defend himself. If we cannot speak our mind, at least about the wrongs in our society, even if it insults and brings into contempt some class of people, how can we remain an open democratic society?

Author: Johan van der Merwe is a final year law student at the University of Pretoria. He will practice law, but also pursue a master’s research degree on the topic of constitutional interpretation and the rule of law.