Hate speech and legal overreach in South Africa

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.


Also published on Medium.

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  • Vicky Moriarty

    The answer to 1984 is 1776. Don’t worry too much about this Bill. We are on the verge of a Third World War. This time next year food/water shortages will be far bigger problems.

  • An Ardent Skeptic

    There was a lot of hateful speech in my house when I was growing up. My parents didn’t like each other or their children. Words like “bird brain”, “stupid”, “idiot” “evil” and “ugly” got hurled around rather than talking about issues in an adult, rational manner. Issues don’t get resolved when discussion starts with nasty attacks on someone’s intelligence or appearance.

    I was very sensitive to the yelling so I would do my best to be a good girl who wouldn’t cause unhappiness. I also tried to fix the “problem” by doing something about what I thought had caused the outburst. As examples… Dad got angry because Mom hadn’t ironed his shirts so I made sure that Dad’s shirts were always ironed. Mom got angry that the copper bottoms of her cookware were tarnished so I used copper polish on the pans after doing the dishes. Each time I tried to make people happy and get the yelling to stop, my mother would accuse me of having “ulterior motives”. I wanted something which I wasn’t going to get. What I wanted was for these angry outbursts to stop. She was right that I was never going to get what I wanted because these ugly verbal exchanges continued throughout my entire childhood.

    What I learned from this experience is that rushing to negative judgment about people is a very hurtful thing to do and solves nothing. I try to be very careful not to assume the worst possible motivation when someone says or does something I don’t approve of. I know the problem could be a misunderstanding on my part rather than a revelation of some inner “evil” someone else has.

    I have real difficult with classifying speech as “hate speech” unless there is a well-established pattern of hateful speech about a group of people of type “X”.

  • Joe Justice

    The problem with this bill and how it is worded is that it conflates being harmed with being offended. Especially in the context of ridicule. It has been my long held opinion that “Only that which is actually ridiculous, is truly susceptible to ridicule.” The interpretation of this bill has no limits. Under this bill a statement like “The idea of a talking donkey is ridiculous” can and will be interpreted as hate speech, simply because someone might interpret it as “He says talking donkeys is a ridiculous idea, I believe donkeys can talk under certain circumstances, therefore my beliefs are ridiculed, and because these are deeply held and personal beliefs of mine, I have been ridiculed for my religious beliefs.”

    The defendant then has only the option of hoping that the Justice presiding does not also believe in talking donkeys.

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