/ 2 November 2016

Hate speech is not a hate crime

Controversial estate agent Penny Sparrow said black people are great during an interview in June. Sparrow was fined R150 000 for her earlier racist comments on Facebook.
Controversial estate agent Penny Sparrow said black people are great during an interview in June. Sparrow was fined R150 000 for her earlier racist comments on Facebook.

Activists have voiced concerns over the chilling effect the inclusion of hate speech provisions in the Hate Crimes Bill could have on freedom of speech.

Last month, the Cabinet’s decision to publish the Prevention and Combating of Hate Crimes and Hate Speech Bill for public comment was welcomed, but the inclusion of hate speech provisions has raised concerns.

Mark Gevisser, the lead content adviser for a recently released report, Canaries in the Coal Mines – An Analysis of Spaces for LGBTI Activism in Southern Africa, said that he was sceptical about hate speech legislation generally because of the effect it could have on freedom of speech.

“The bar needs to be set very high – incitement has to be proven. In other words, saying ‘I hate faggots’ should not be a crime. ‘Go and kill faggots’ should be, especially if there is evidence that people act on it. Likewise, saying ‘I hate lesbians’ should not be a crime, but raping someone because they are a lesbian should be a crime,” Gevisser says.

Sanja Bornman, the chairperson of the Hate Crimes Working Group and managing attorney of the Lawyers for Human Rights’ Gender Equality Project said the inclusion of the hate speech provisions was “very bad news for victims of hate crime, which affects a wide range of people on the basis of race, nationality, gender identity and many other grounds”.

A network of civil society organisations set up the working group to “spearhead advocacy and reform initiatives pertaining to hate crimes in South Africa”.

But the group was concerned about the “criminalisation of hate speech”, and said the controversial provision could result in delaying the promulgation of the Bill into law, although, Bornman added, the working group was “very happy that the Bill is out for comment”.

“It has been almost 10 years in the making, and one only needs to read the news to see how urgent the need for a Bill is.”

It aims “to give effect to South Africa’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance in accordance with international law obligations; to provide for the offence of hate crimes and the offence of hate speech; and the prosecution of persons who commit those crimes [and] to provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences”.

Speaking at the working group’s annual general meeting in March this year, Deputy Minister of Justice and Constitutional Development John Jeffery said the “Bill initially excluded hate speech and the criminalisation of unfair discrimination from the ambit of the Bill because of the sensitivities and complexities involved, particularly in a multicultural country such as ours”.

But subsequent to the racist remarks made on social media platforms by people such as Penny Sparrow, Jeffery said, the need to include hate speech provisions was made clear.

Sparrow was the subject of a social media backlash this year when she posted an inflammatory comment on Facebook in January, calling New Year’s Day beachgoers “monkeys”. In her post she wrote: “I’m sorry to say that I was amongst the revellers and all I saw were black on black skins what a shame.”

In light of this incident and others, Jeffery told the working group that “The Bill, as submitted to the working group, has thus been adapted to include hate speech. It incorporates the comments of the working group and will now be subjected to a broad public consultation process. The revised Bill is now called the Prevention and Combating of Hate Crimes and Hate Speech Bill,” said Jeffery.

But, Bornman said, contrary to the deputy minister’s remarks, the provisions were “not at the behest of the working group” and that its members were “surprised” at their inclusion.

“We feel that there are existing laws in place, such as the provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) which could be improved to deal adequately with hate speech,” she said.

Although the Act makes provision for hate speech, Bornman said there was a need to update the Act because of the increasingly large role social media platforms now played in people’s lives.

Section 10 of the Act, the Prohibition of Hate Speech, reads: “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm [and/or] promote or propagate hatred.”

But Bornman said the provisions “could be beefed up to be more up to date with our daily lives. When Pepuda was promulgated, social media was not such a big part of our lives.”

She said the working group would include its concerns in their written submission as part of the public comment process, the deadline for which is December 1.

The working group has also requested an extension of the deadline until at least February 2017.

“We do not believe that civil society can provide meaningful comment on the Bill at this late stage in the year and within the space of a month. The Bill is too important to rush through this comments phase after 10 years of hard work,” says Bornman.

Whether or not the hate speech provisions are ultimately removed from the Bill remains to be seen. But what is going to determine the effectiveness of this legislation is its implementation, according to Gevisser.

“In South Africa, there is a dissonance between legal acceptance and social acceptance. One way to explain this disjuncture is the way in which these legal reforms are implemented.

“We often have these Rolls Royce policies that are not implemented at grassroots level. What’s going to determine the effect of hate crimes legislation is how it is implemented.”

Carl Collison is the Other Foundation‘s Rainbow Fellow at the Mail & Guardian

The Other Foundation