1. was afforded little to absolute no protection

1.      LITERATURE REVIEW

1.1.        Introduction

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This section aims to review the focal points and current knowledge of the right to freedom of expression and the need for regulation in the form of the Prevention and Combating of Hate Crimes and Hate Speech Bill “the Hate Speech Bill” especially on the internet which will identify the need to create a balance between both interests. This literature review is divided into three parts discussing the development of the right to freedom of expression in South Africa and then discussing the Bill further a discussion will pursue with regards to the need to regulate such form of free speech on the internet without creating a form of censorship on the internet as a whole.

1.2.        Freedom of expression

Human Rights was afforded little to absolute no protection before South Africa became a democracy governed by a Constitution in 1994. 1The Constitution of the Republic of South Africa act 1996 “the Constitution” along with chapter 2 which comprises of the Bill of Rights was born from the apartheid struggle which once governed South Africa.2 Essentially the Bill of Rights is an important element which aided in the transformation of South African society and the country’s legal system as a whole. 3

Embodied in the Bill of Rights and for the purposes of this research paper is the right to freedom of expression or alternatively freedom of speech as embedded in section 16 of the Constitution.

Chapter 2, section 16 of the South African Bill of Rights states:

1.    Everyone has the right to freedom of expression, which includes

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.

International law recognizes the importance of the right to freedom of expression in terms of Article 19 of the Universal Declaration of Human Rights “UDHR” which states that;

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information as well as ideas through any form of media regardless of frontiers.”4

The right to freedom of opinion and expression comprises the ‘cornerstone of a democratic society’ as mentioned in article 19 of the UDHR and as stated in the preamble of the Bill of Rights. 5

Although the right to freedom of expression is afforded adequate protection under the Constitution, the Constitution also recognizes the law of general application, in stating that the legislature can pass laws which may limit the right to freedom of expression insofar as this limitation is reasonable and justifiable in an open democratic society. In order to determine the reasonableness of a limitation the following factors need to be considered; the nature of the limitation, the importance for the purpose of the limitation; nature and extent of the limitation6 ; the relation between the limitation and purpose and whether less restrictive means exist.

The court in the National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others case defined the limitation exercise in these terms:

‘The balancing of different interests must still take place. On the one hand there is the right infringed; its nature; its importance in an open and democratic society based on human dignity, equality and freedom; and the nature and extent of the limitation. On the other hand there is the importance of the purpose of the limitation. In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and its purpose as well as the existence of less restrictive means to achieve this purpose’.7

The end of World War II in 1948 saw the adoption of numerous human rights instruments by the UN bodies. Article 19 of the 1996 International covenant on Civil and Political rights states that “everyone shall have the right to hold opinions without interference and have the right to freedom of expression.”8 The right to freedom of expression extends its scope to communication on the internet without limitation to jurisdictional borders. The right to freedom of expression is the center of democratic progress therefore any interference in the form of sanctions or censorship of content on the internet would violate this right.9

John Stuart Mill a British philosopher expressed his views against censorship in which he argues that “an opinion which is not allowed to be voiced and therefore heard might just be true, and that it might contain some truth.”10 Mill therefore expresses that the restriction on freedom of opinion threatens the ability of truth, in which he further states that “good human life is one in which we think, reflect and rationally choose for ourselves from different beliefs and lifestyles according to what seems most true or meaningful to us” 11

In this Mill argues that human communication should not be restricted as it expresses individuality however individuals do so at their own peril and with their own conscience reasoning. 12Maymbala concurs with Mill in his arguments against the restriction of freedom of expression, in which he mentions that this freedom of communication aids in the building of a tolerant culture filled with divergent views and allows for the acceptance of opposing ideas in order to explore different sides of one spectrum.

Mayambala also highlights that “the best way to fight prejudices is through freedom of expression in which people of different cultural backgrounds exchange views and ideas in a humanly and tolerant way especially where a borderless internet exists.” 13 The right to freedom of expression is a net that captures and safeguards the exercise of all the other rights which are presented in the Bill of Rights.

Arguments that support freedom of speech are often linked to arguments that are in favor of limiting it.14 In other words one person’s right to freedom of expression can often infringe another person’s right, this creates a controversial debate on when speech is acceptable and when speech is deemed to violate another equally protected right.15

1.3.        The Hate Speech Bill

The hate speech bill is a bill in which parliament drafted in order to Combat and prevent Hate Crimes or Hate Speech. This Bill is further described as a limitation to the constitutionally protected right to freedom of expression as mentioned in section 16. 16

The Bill aims to combat racism and hate crimes which is a transformational step forward to a democratic society. However laws which may potentially encroach constitutional rights must be scrutinized in order to determine whether such a limitation may be reasonable. The Bill describes what constitutes hate speech in the following terms;

“A person (including a juristic person like a company) is guilty of the offence of hate speech if they intentionally, by means of any communication, communicate in a manner that:

advocates hatred towards any other person or group of persons; or
is threatening, abusive or insulting towards another person or group;
or demonstrates a clear intention to incite others to harm any person or group (whether or not they are harmed) or  stir up violence against, or bring into contempt or ridicule, any person or group on the basis of the above-listed characteristics.”17

 

Those in favor of the Bill notes that although laws cannot out rule or rid racism it can, however, make a change in social attitudes.18 However critics against the Hate Speech Bill note that section 4 of the Bill is defined too broadly in which the limitation it sought to impose casts the net wide enough to capture speech that is not necessarily hateful but may be considered as comedic or necessary in the search for the truth or further in the marketplace of ideas.

Section 4 of the Bill states;

1)    “a. Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that –

(i)             advocates hatred towards any other person or group of persons; or

(ii)            is threatening, abusive or insulting towards any other person or group of persons, and which demonstrates a clear intention, having regard to all the circumstances, to –

aa.  incite others to harm any person or group of persons, whether or not such             person or group of persons is harmed; or

bb.stir up violence against, or bring into contempt or ridicule, any person or    group of persons, based on race, gender, sex, which includes intersex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade, is guilty of the offence of hate speech.

 

b.    Any person who intentionally distributes or makes Page 8 available an electronic communication which constitutes hate speech as contemplated in paragraph (a), through an electronic communications system which is –

(i)    accessible by any member of the public; or

(ii) accessible by or directed at a specific person who can be considered to be a victim of hate speech, is guilty of an offence.

 

c.      Any person who intentionally, in any manner whatsoever, displays any material or makes available any material which is capable of being communicated and which constitutes hate speech as contemplated in paragraph (a), which is accessible by or directed at a specific person who can be considered to be a victim of hate speech, is guilty of an offence.

Those who oppose the limitation of the Hate Speech bill are concerned that such limitation may result in censorship of the truth which often at times is communicated through the right to free speech as well as comedic speech. Further critics believe that such a limitation would result in excessive lawmaking whereby less restrictive means already exist in order to create an offence for hate crimes and hate speech.

1.4.        Internet Regulation and Censorship

Weckert basis his argument on the extent of the right to freedom of expression especially on the internet by highlighting the fact that the real issue lies in when to draw the line for this freedom. He argues that where speech or expression causes harm to another there should be restrictions in place which limit the extent of this freedom. 19Weckert further argues that where one right harms others or infringes on the rights of others this provides grounds for regulatory measures. Therefore consideration must due as to whether grounds for regulation apply in the same way on the internet and uttered free speech in which the former is noted as having a borderless jurisdiction. Weckert further notes that regulating the internet in terms of the freedom of expression is more difficult to control in terms of both the material that is placed on the internet as well as that material transferred across this medium of communication.20

Weckert draws the conclusion that the internet could justifiably be regulated. He draws his conclusions on a study conducted by the London school of economics “the London school”. This study revealed that there is a variety of problematic content on the internet, the study further reveals that although these findings cannot be regulated in a similar manner it should not be avoided.21 The London school stated that the internet was developed based on the philosophy of free expression and further argues that the internet now is used as a mass media and therefore needs to be regulated similar to that of other media mediums.22

Oxford conducted an internet survey which was published in May 2005 aimed at studying the public’s views with regards to the regulation of the right to freedom of expression.23In summary this survey revealed that the issue is not whether regulations should be put in place , rather the question is targeted at whom should be responsible for deciding the grounds for regulation as well as whether such regulation would be effective.24

Limitation on the right to freedom of expression especially on the internet platform need to be necessary in order to be reasonable. Dr Callamard states:

“The word ‘necessary’ means that there must be a ‘pressing social need’ for the limitation. The reasons given by the State to justify the limitation must be ‘relevant and sufficient’; the State should use the least restrictive means available and the limitation must be proportionate to the aim pursued. The European Court of Human Rights has warned that one of the implications of this is that States should not use the criminal law to restrict freedom of expression unless this is truly necessary.” 25

Where less restrictive means already exist it is not necessary to implement more restrictions on a right which may result in encroachment and in respect of the right to freedom of expression may be viewed as a form of censorship imposed by regulating authorities. The use of criminal sanctions further views the Hate Speech Bill as a form of censorship law especially on the internet as the government makes use of criminal law aspects in order to regulate what people can and can’t say.

1.5.        Conclusion

There has been no academic writings or literature that exclusively focuses on the limitation of the right to freedom of expression on the internet and regulation thereof as the Hate Speech Bill has been newly developed. Many countries have developed laws in order to regulate the internet however South Africa has not yet dealt with the need for such regulation until recently with the increase of hate speech especially on social media platforms.

1 DLA Cliffe Dekker

2 Constitutional Law Only study guide for CSL101-J University of Pretoria.

3 The Bill of Rights Handbook – Chapter 1

4 UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34 , available at: http://www.refworld.org/docid/4ed34b562.html accessed on 17 May 2017.

5 Ibid.

6 The Constitution of the Republic of South Africa Act 108 of 1996 section 36; Limitation clause.

7 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6;

1998 (12) BCLR 1517 at para 35.

8 United Nations “History of the document” available at http://www.un.org/en/sections/universal-declaration/history-document/index.html accessed on 17 May 2017.

9 G. Govindarajan & N. Ravindar ‘freedom of expression on social media: myth or reality’ 2016 Vol. 7 at 4

10 Mill, J.S. 1992 ‘Of the limits to the authority of society over an individual’ in On Liberty.

London: Adamant Media Corporations.

11 Ibid.

12 Ibid.

13 Mayambala, R. 2008. Internet censorship and freedom of expression: a critical appraisal of the regulation of hate speech on the internet. Glasdow; Caledonian University

14I Currie, J De Waal ‘The Bill of Rights Handbook’ Juta and Company Ltd 2005 at 339.

15 Ibid.

16 Michalsons ‘Hate Bill or Hate Crimes and Hate Speech Bill’ available at https://www.michalsons.com/blog/hate-bill-hate-crimes-hate-speech-bill/23223 accessed on 17 May 2017.

17 Michalsons ‘Hate Bill or Hate Crimes and Hate Speech Bill’ available at https://www.michalsons.com/blog/hate-bill-hate-crimes-hate-speech-bill/23223 accessed on 17 May 2017.

18 Michalsons ‘Hate Bill or Hate Crimes and Hate Speech Bill’ available at https://www.michalsons.com/blog/hate-bill-hate-crimes-hate-speech-bill/23223 accessed on 17 May 2017.

19 Z.N Mthimkhulu ‘Regulating Freedom? An Examination of the Discourse on Internet

Regulation and Freedom of Expression in South Africa’ 2010 Chapter 1 at 18.

20 Z.N Mthimkhulu ‘Regulating Freedom? An Examination of the Discourse on Internet

Regulation and Freedom of Expression in South Africa’ 2010 Chapter 1 at 18.

21 Z.N Mthimkhulu ‘Regulating Freedom? An Examination of the Discourse on Internet

Regulation and Freedom of Expression in South Africa’ 2010 Chapter 1 at 18.

22 Z.N Mthimkhulu ‘Regulating Freedom? An Examination of the Discourse on Internet

Regulation and Freedom of Expression in South Africa’ 2010 Chapter 1 at 18.

23 Z.N Mthimkhulu ‘Regulating Freedom? An Examination of the Discourse on Internet

Regulation and Freedom of Expression in South Africa’ 2010 Chapter 1 at 18.

24 Op Cit note 38.

25  Agnes Callamard “Expert meeting on the links between articles 19 and 20 of the ICCPR: Freedom of expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence” UN HCHR available at: http://menschenrechte.org/wpcontent/uploads/2013/05/Freedom-of-expression-and-advocacy-of-religious-hatred-that-constitutesincitement-to-discrimination-hostility-or-violence.pdf accessed on 22 May 2017.