Rulings leave freedom of expression in lurch

Freedom of expression has suffered two body blows in recent weeks. The first occurred when the ANC majority in the ad hoc parliamentary committee approved the Protection of State Information Bill. The second occurred with the ruling of the Equality Court in the hate speech case between AfriForum and ANC Youth League president Julius Malema.

Both developments may yet be reversed. The ANC has delayed Parliament’s debate on the information Bill indefinitely while it considers further submissions and engages its constituencies. And the ruling party has applied for permission to appeal against the Equality Court’s decision. If either of these developments stand, freedom of expression will be severely curtailed.

It is by now well known that the draft legislation for the information Bill will regulate the classification of state information in the interests of national security. No democracy is without necessary secrets and in principle legislation of this nature is unobjectionable.

But the devil is in the detail. While the information Bill is a vast improvement on both the Bill introduced by former minister for intelligence services Ronnie Kasrils in 2008 and the first draft before the committee last year, it fails to balance optimally openness and transparency with the need to protect national security.

Take, for instance, the leak of a classified document which, either on its own or in combination with other information reveals the abuse of the intelligence services by the state.

The citizen who has this information leaked to her cannot publicly blow the whistle on this criminality without committing a host of criminal offences. Mere failure to report possession of the document is a criminal offence punishable by a fine or a maximum five-year jail sentence. The same applies to disclosing the information.

If the information is a matter of “state security”, which it is likely to be in this example, the retention and/or disclosure of the information is, in addition, visited with a mandatory prison sentence not exceeding 10 years. And if the citizen “knows or ought reasonably to have known” that the information would “directly or indirectly benefit a foreign state”, espionage will have been committed and the receipt and/or disclosure of the information carries mandatory jail sentences of between three and 25 years each, depending on the level of classification of information.

Whistle-blower curbs
There has been much talk by the ruling party of the alignment between the information Bill and whistle-blower legislation such as the relevant provisions of the Companies Act and the Protected Disclosures Act. But the reality under the information Bill is quite different: whistle-blower legislation is applicable only to a narrow class of recipients of classified information and the citizen in the example above would not qualify.

The stated alignment to the Promotion of Access to Information Act (PAIA) is just as illusory: the information Bill permits a person to request classified information, but that information would be declassified and released only if the information passed the stringent “public interest override” test borrowed from the PAIA.

This encroaches impermissibly into the terrain of the PAIA, where a similar request would have required the state to justify why the information ought to be kept secret in the first place, before one got near the “public interest override” analysis. There is no doubt that there will be a chilling effect on freedom of expression if the information Bill is passed in its present form and we hope the ruling party will effect major plastic surgery on the Bill so that it passes constitutional muster.

The ANC is, however, quite correct in its objection to the judgment of Judge Colin Lamont in the Equality Court in the hate speech case involving the struggle song, Dubul’ iBhunu. The judge ordered that the words and the song constitute hate speech, interdicted Malema and the ANC from singing the song at any public or private meeting and held that “morality of society” dictates that all people should refrain from using the words or singing the song. In effect, the judge imposed a blanket ban on the singing of the song.

Lamont stated that people who wished to sing the song, either in private or in circumstances where it is difficult to prevent its singing, must “pursue and find a new morality. They must develop new customs and rejoice in a developing society by giving up old practices which are hurtful to members who live in that society with them.”

The court missed the fact that the song can, of course, be sung in a context that does not amount to hate speech. Some easy examples are when Malema’s legal team sang the song in court, where the song is taught in history lessons or sung while one is taking a shower. The judge also didn’t fully interrogate the contexts in which the song was sung by Malema. While the political wisdom of singing the song is one issue, it is quite another to justify a ban on the song in all contexts in a democracy that takes freedom of speech seriously.

The case raises the question of whether the definition of “hate speech” in the Constitution ought to prevail over the far broader definition set out in the Equality Act. While section 16(2) of the Constitution limits hate speech to speech which advocates hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm, the test in the Equality Act includes any speech that can “reasonably be construed to have a clear intention to be hurtful”, and this was clearly one of the bases upon which the court held that the song constituted hate speech.

On appeal, a major constitutional issue will be whether the Equality Act’s definition of hate speech is itself unconstitutional, and whether the narrower definition of “hate speech” proffered in the Constitution ought to govern.

What is clear is that whichever definition is used, speech, in whatever form, must be considered in context before one is able to reach a firm conclusion that the speech is not of a kind that our society tolerates. And it is precisely that analysis which is largely missing from the Equality Court’s judgment — with the result that the order substantially restricts free speech.

Dario Milo and Nozipho Mngomezulu are partners at Webber Wentzel

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