Free speech? Freedom of expression, and its limitations
International discussions and debates on the merits of limitless (free) speech, and whether or not speech that incites harm should be protected or banned from social media, is currently trending on social and corporate media sites.
In South Africa, chapter 2 section 16(1) of the Constitution guarantees that everyone has the right to freedom of expression, including:
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
The freedom to express opinion, under South African law, is however not unlimited!
The right to freedom of expression must be exercised responsibly, without infringing on other rights such as the rights to dignity and equality.
Section 16 (2) therefore prohibits any expression that:
(a) propagates for war;
(b) incites others to violence; or
(c) advocates hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
To give effect to section 16(2) of the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act), in Section 10(1), prohibits the publishing, propagating, advocating or communicating words based on one or more prohibited grounds, against any person, that can reasonably be construed to demonstrate a clear intention to a) be hurtful; b) be harmful or incite harm; or c) promote or propagate hatred.
Prohibited grounds of discrimination in the Equality Act include:
race, gender, sex, pregnancy, family responsibility or status, marital status, ethnic or social origin, HIV/AIDS status, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
The Prevention and Combating of Hate Crimes and Hate Speech Bill (Hate Speech Bill) will make prohibited speech identified as hate speech, a criminal offence.
* Section 4(1) of the Hate Speech Bill defines the offence of hate speech as – intentionally publishing, propagating or advocating, or communicating anything, to one or more persons, in a manner that could reasonably be construed to demonstrate a clear intention to (i) be harmful or to incite harm; or (ii) promote or propagate hatred.
The Hate Speech Bill lists the following prohibited grounds for discrimination:
age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, sex, which includes intersex, or sexual orientation.
The Bill also prohibits the intentional distribution of any electronic communication, which that person knows to constitute hate speech, for any reason other than a) academic or scientific inquiry, b) fair and accurate reporting, c) commentary in the public interest, and d) the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, provided that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm.
In summary, the right to hold opinions and to impart and receive ideas and information, is a protected but limited right in South Africa. The right to expression is limited in order to protect the rights to equality and dignity of others.
SAPRA ‘Your Rights’ Resource