”Always Cary a gun, apply for one or do your thing, for any small mistake from a white terrorist handle him with full aggressiveness and brutal force if necessary,” writes an anonymous user, verbatim, on a South African online discussion forum, referring to himself as ”a regular brother with war credential”.
This was posted late last month on an SABCNews.com forum as one of more than 100 responses to a thread titled ”Is Zimbabwe’s opposition unravelling?”. The topic quickly degenerated into a racially charged encounter between black and white users.
Other responses ranged from ”Where’s the KKK when you need them” to ”Kick the white pigs out of SA”, showing how the views aired on these forums can come to represent the extreme attitudes in society.
This problem is not restricted to the South African Broadcasting Corporation (SABC). A moderator on the Mail & Guardian Online‘s discussion forums, who declined to provide her name for safety reasons, says that in terms of hate speech, the forums see ”lots of it”.
”We try to kill it, to ban it,” she says, referring to a small team of volunteer moderators who monitor the M&G Online forums.
Following the bout of racist comments that were posted on the SABC’s forum last month, the broadcaster removed the offensive content, but unlike the M&G Online, it does not have permanent moderators working on its website.
”The SABC forums are unmoderated forums … we monitor it in between doing other work,” says Rachel Stewart, executive producer at the SABC’s unit for new media.
She says the process worked well previously, and the SABC website had no problems with hate speech. Since the November incident, however, the broadcaster has decided to revise some of its strategies.
”Previously with popular forums we let them run and stay alive for a while,” Stewart says. ”Now we have fewer forums running, [and] for a shorter time.” She adds that the SABC is looking into moderating its forums and barring offending users — as the M&G Online already does — and has considered employing ”scrubbers”, people whose job it would be to clean up the forums.
Deep racial issues
Stewart says the November incident was the first of its kind on the SABC site, with the comments being offensive on the grounds of racial prejudices.
The M&G Online moderator agrees that racism and hate speech are also the biggest problems on the M&G forums. ”This country is suffering from the aftermath of deep racial issues,” she says, adding that these attitudes often play out severely on online discussion forums.
The most recent incident on the site happened just two weeks ago when someone posted highly offensive anti-Semitic remarks. ”It was really bad; I’m not going to repeat it,” she says.
In constitutional terms, hate speech has a clear definition, but in practice it is more difficult to gauge. Section 16 of the Constitution defines hate speech as that which contains propaganda for war; incites imminent violence; or advocates hatred based on race, religion, gender or ethnicity, and seeks to incite harm.
Dario Milo, an expert in media law at the firm Webber Wentzel Bowens, says the constitutional definition of hate speech is very tight and that the context of the publication and the words used must be extreme and actively incite harm to be considered hate speech.
Online discussion forums — particularly those associated with reputed sites, such as those of news organisations — usually have disclaimers exempting their owners from liability for any harm caused, as well as ”terms of use” explaining the rules for using the forums, and the consequences for breaking those rules.
Both the SABC and the M&G Online have conditions of use stipulated on their websites. ”The forums’ ‘terms of use’ empower the team [of moderators] to deal with these [offensive] people,” the M&G Online moderator says.
But measures such as these only protect websites to a degree. Milo explains that from a legal standpoint, the liability for content posted on the web lies with both the individual who posted it and, potentially, the internet service provider (ISP) that hosts the content.
Sites with discussion forums, such as the M&G Online and SABCNews.com, provide a framework through which to post content, Milo says. However, under the 2002 Electronic Communication and Transaction Act, ISPs are divided into different categories — sites that host forums are not necessarily held liable for destructive commentary, as long as they ”act expeditiously to remove the offending information once they acquire actual knowledge of the illegality”.
Individual liability
Regarding individual liability, Milo says this is often more difficult to pinpoint because of the general anonymous environment of the internet. ”The person who posted it [the offensive content] can be sued … [but] only if you find out who posted it, can you take action against this person.”
Before posting comments to online forums, users first have to register using a valid e-mail address, making them identifiable to a certain degree. However, some users spoof internet addresses and pretend to be someone else.
Although the relative anonymity of the internet poses particular challenges, Milo points out that even greater difficulty exists in trying to apply traditional print-based laws to interactive media environments.
”Our jurisprudence hasn’t matured enough to deal fully with the ripples caused by the internet,” Milo says, explaining that when articles are posted on websites, media organisations are in some cases more vulnerable to legal action than if the articles had been published in the traditional way.
Under current legislation, a person has three years after the date of publication during which to sue a newspaper, for defamation, for example. But with the internet and archiving systems, information is stored electronically for decades. Current South African law regards ”each click [as] a fresh publication”, meaning that whenever an article is accessed, the concerned individual has three years from that point in which to sue, Milo says.
”It creates a perpetual liability … for the electronic publisher, as long as he keeps it [the content] up,” Milo says. ”It is a disincentive [for online media] to create libraries of information, and that harms freedom of expression and the free flow of information.”
Another problem is that there is no worldwide cohesion of legislation for the internet. ”What is required for effective regulation is international cooperation … [and] this is still very far off,” he says.
The SABC’s Stewart says that ”finding the balance between freedom of expression and the limits on free speech in terms of defamation, libel and hate speech” is what is needed in regulating online forums.
In the meantime, Milo says, defamatory statements and hate speech on the internet will have to be dealt with on a case-by-case basis by trying to ”massage” and adapt common law to specific online situations.