William Bird is director of Media Monitoring Africa (MMA) and Thandi Smith heads the Policy & Quality Programme at MMA, a partner in the 411 platform to counter disinformation. 

Week 23: Good news on defining hate speech

The week ended with a bang with the Constitutional Court handing down judgment in the Jon Qwelane case. Why should a case about a homophobe be so important? It’s important because it sought to bring clarity to how we define hate speech. It’s important because, as Justice Steven Majiedt said, “Hate speech is one of the most devastating modes of subverting the dignity and self-worth of human beings.” And of course it’s important because understanding it and combating it is an integral element of building our democracy, made all the more tenuous as a result of the violence in July. This week we look at the ruling and some of the key shifts it will introduce.

As is so often the case with Constitutional Court judgments they help us see both how deeply nuanced and complicated an issue can be, but also how working from the principles of the Constitution rights can be balanced in order to ensure all are protected and respected. Atpacked full of lovely arguments and is essential reading for anyone with an interest in these areas. There were seven amici (or friends of the court). Friends of the court are groups who usually have a special interest and/or level of expertise in an area and they participate in a case to help the judges decide on tricky matters. Media Monitoring Africa (MMA) was one of the amici, and we were represented by Dario (Riggs) Milo, from Webber Wentzel, and three advocates, Michael (Fingers) Mbikiwa, Steven (Rocky) Budlender and Gilbert Marcus. At issue in the case were whether Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) was unconstitutional and whether the complaint against Jon Qwelane should have been upheld. 

For our current purposes we wanted to highlight how Real411 assesses hate speech, and then we will look at the revised definition and what it might mean for us. We will be consulting with our legal experts over the next few days and revising the criteria on the basis of their input. We will thus ensure that Real411 continues to adhere to the highest standard for balancing rights, with an emphasis on protecting and respecting freedom of expression.

For current purposes the criteria used are drawn from Section 16(2) of the Constitution and Pepuda:

The criteria we use are:

“How does the DCC (Digital Complaints Committee) determine hate speech from free speech? 

1. In order for the DCC to determine a complaint to be hate speech, as contemplated in terms of Section 16(2) of the Constitution, the following elements must be met: 
   1. There has been advocacy of hatred against another person;
   2. It is based on one or more prohibited grounds, including race, ethnicity, gender or religion;
   3. It constitutes incitement to cause harm; and
   4. It does not constitute bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution.” (Real411)

Here is an example of a complaint assessed to be hate speech by Real411. According to the final review determined by the secretariat, “The tweet promotes hatred by instilling detestation, enmity, ill will and malevolence – it alleges that black people were praying for the death of a pastor in Chatsworth and that they may be doing so due to the race, and/or ethnicity of the pastor. In the current context, the tweet is likely to further inflame racial tensions and increase the likelihood of violence.” 

In terms of Section 16(2) of the Constitution, there must be both advocacy of hatred and incitement to cause harm in order for the content to fall within the category of unprotected expression and fall foul of the freedom of expression provision. However, for the purposes of hate speech under Pepuda, incitement to cause harm is no longer a mandatory criteria. It is important to note that while content that falls within Section 16(2) of the Constitution is considered to be unprotected, a proper analysis of an allegation of hate speech under Section 10 of Pepuda will require a court to determine whether the limitation is reasonable and justifiable in an open and democratic society.

Following from this, the key change to Pepuda has been a reading in of the following section which will be in force until Parliament changes it:

“During the period of suspension of the order of constitutional invalidity, section 10(1) of the Equality Act will read as follows:

“(1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.” (Majiedt 1(d) Order Our emphasis) 

This can be broken down into the following cumulative elements:

• The content publishes, propagates, advocates or communicates words that are based on one or more of the prohibited grounds against any person.
• The content could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm.
• The content promotes or propagates hatred.
• The content does not constitute bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest, or publication of any information, advertisement or notice in accordance with Section 16 of the Constitution.

Notably, there is still no universally accepted definition of hate speech under international law. In April we unpacked the differing approaches that the social media platforms have in dealing with hate speech. The first issue to be clear on is that the amended section still sets a higher bar for what constitutes hate speech than all of the big platforms. In other words, the platforms are more likely to remove content they find to be in violation of their standards well before our courts would. The distinction is an important one as big platforms demonstrate significantly different approaches to hate speech, which is an issue that cuts to the heart of freedom of expression and is so often intertwined with disinformation. It matters because again we see how big platforms regulate content using divergent approaches and do not take into account local legislation and context. Through Real411, not only do we have a common approach in line with our law, but we also have a common standard being applied across the platforms. This means that we won’t have the same content having different outcomes on different platforms.

The second aspect worth noting is that it refers to the “prohibited grounds” of Pepuda. In other words, something can now be hate speech on the basis of one of the following grounds from Pepuda:

“Prohibited grounds” are: 

(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or 

(b) any other ground where discrimination based on that other ground: (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).” (Pepuda Definitions)

While it might look like just about anything goes with the addition of (b) where it can be any other ground – the Constitutional Court addresses this in paragraphs 129 to 134. Suffice it to say it doesn’t mean you could be accused of hate speech if you spread hatred about, for example, call centres. The grounds must be linked to the purpose of Pepuda and be in line with protecting people’s dignity. Additionally, the content must be directed against a person.

What the addition does mean, is that there is a wider scope for content to be considered as hate speech than the four grounds listed in Section 16 of the Constitution. We think this is a positive development, especially as it relates to other marginalised communities and groups.

Another important shift is that where it might have been necessary previously to have incited harm against a group, the court has now found that it may also, or alternatively, be sufficient for content to be “intended to be harmful”. In other words, “the section postulates prohibiting expression that either harms or evokes a reasonable apprehension of harm to the target group”. (Majiedt para 112.)

This is developed from the idea that, “inciting hatred does not necessarily entail a call for an act of violence, or other criminal acts” and speech that does not “directly recommend individuals to commit hateful acts may still reach the threshold of hate speech”. (Majiedt para 108.)

The Constitutional Court goes further to outline the kinds of harm that can be considered:

“Similarly, in SAHRC v Khumalo,  three types of harm were illustrated.[187]  First, “the reaction of persons who read the utterances and who are inclined to share those views and be encouraged by them to also shun, denigrate and abuse the target group”. Second, the type of harm experienced by the target group which includes “demoralisation and physiological hurt” and “the harm caused from responding in kind thereby creating a spiral of invective back and forth”.  And third, “harm to the social cohesion in South African society” which can undermine our nation building project.” (Majiedt para 154.)

We understand these additions to mean that while the bar for harm has not been lowered, additional aspects of what may be considered to be “incitement to harm” and “intended to be harmful” have been expanded and clarified.

The next important element of the Constitutional Court order is around hatred. Where under our Constitution it is necessary for the element of advocacy of hatred for it to be unprotected speech, the order now reads to “promote or propagate hatred”.

The Constitutional Court has this to say: “The use of the terms ‘advocate’ and ‘propagate’ in section 10 of the Equality Act is indicative of ideas rather than words, if they are to be accorded their full meaning.  Attaching a literal interpretation to these words would not achieve the objects of the provision.  The inclusion of these two concepts suggests that the intention is to give effect to article 4 of the [International Convention on the Elimination of all Forms of Racial Discrimination] and section 16(2)(c) of the Constitution respectively, which are specifically concerned with racist “propaganda” and the “advocacy” of hatred.” (Majiedt para 114.)

While it is clear that the terms cannot be taken at face value, it is also unclear to us whether and to what extent some content may be required to be propaganda, and where the bar sits for what constitutes promotion. Could it be that something could be considered propaganda against a group if it is pushing disinformation about that group that is also hatred? For example, “gay people are like dogs”. Could promotion of hatred be considered posting and reposting hatred about a group on social media? In other words, unlike the original article by Qwelane which offered arguments encouraging people to treat gay people like animals, might it be enough to spread on social media a meme or content saying “gay people are like animals”?

What are the implications of the Constitutional Court ruling for the current approach to hate speech used by Real411?

We note that there are two shared issues. Real411 has already been working on the expanded list of prohibited grounds. Also, like Pepuda, we draw a distinction between scientific, research and public interest use of the language, including satire and humour, which could be protected speech.  The changes we are likely to need to make are around expanding advocacy of hatred to include “promote or propagate hatred”. The other shift will come in expanding “incitement to cause harm” to cover “intention to be harmful”.

As we work on these issues, it is important to highlight perhaps one of the most significant findings of the Constitutional Court, that the criteria must be read conjunctively. In other words, for something to be hate speech in terms of Section 10 of Pepuda, it must be on the basis of one or more of the prohibited grounds, AND it must incite harm or clear intention to be harmful AND it must “promote or propagate hatred”.

We will update our criteria and share them on Real411 soon. In the meantime, you can help by reporting digital harms to Real411. It might not stop disinformation, but it may reduce the spread and cause less harm. It is critical that we all play our part in combating and mitigating these digital offences. If you suspect that content you come across could potentially be disinformation, hate speech, harassment of journalists or incitement to violence, there is something you can do about it.

To make it even more simple, download the Real411 mobile app. We are approaching that magical period where political parties need to show us that they care, so in addition to asking about what they will do in your area, ask them to issue one public statement a month in the lead-up to elections that highlights and condemns any attacks on our journalists AND then to demonstrate what action they took to help combat that. If they are edgy or push some other bullshit agenda don’t vote for them because they don’t believe in democracy. 

Remember, if you come across content on social media that could potentially be disinformation, report it to Real411. 

Download the Real411 App on Google Play Store or Apple App Store.