Abstract
The factual matrix that is considered in each hate speech case differs from that in the next. However, certain factors always remain key in the process of balancing the different constitutional rights at play: who the victim is, who the perpetrator is and the nature of the expression. Additional factors to be considered in deciding whether an expression constitutes hate speech include: historical associations; who the utterer is as against the victim(s); the audience that is addressed and where the utterance is made; and the prevailing social conditions. How South African courts and the South African Human Rights Commission factor in these specific issues in assessing whether an utterance constitutes hate speech is examined in this contribution. Applicable international law principles and comparable foreign law reveal certain areas of the South African hate speech protection requiring refinement.
Highlights
In 2012 the Legal Resource Centre of South Africa cited as reason for taking guidance from other jurisdictions in interpreting and applying the hate speech protection in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 that South Africa's jurisprudence was still "in its infancy".1 Little appears to have changed since
In March 2019, almost two decades after the enactment of the PEPUDA, the South African Human Rights Commission in an official report2 commented that divergent views exist in the various Equality Courts as to what would constitute hate speech
Attached to the different factors? And how does the hate speech protection offered in terms of the PEPUDA as applied by the SAHRC and the Equality Court measure up to international standards? This contribution, which is made against the backdrop of decided cases and recent factual scenarios that have been reported on in the media,6 in particular in newspapers and via social media, answers these questions
Summary
The contextual factors to be considered in a hate speech case depend on the facts of a particular matter. The interpretation afforded to the PEPUDA's hate speech protection, should not be out of kilter with the construct of comparable hate speech provisions in foreign jurisdictions, those having shared international law obligations.. The LRC noted that much as in South Africa, the European Court of Human Rights (the ECtHR) does not have a framework for how the contextual factors must be weighed up in the assessment of hate speech.. Three contextual facts are usually considered to be incremental in the weighing up of the right to freedom of expression and the rights to equality and dignity: the nature of the utterance; who the victims of the hate speech are; and the identity of the alleged perpetrator.. The factors are: historical associations and in relation thereto who the utterer is as against the victims; where and to whom the utterance is made; and the socio-political circumstances at the time of making of the utterance. The Committee on the Elimination of Racial Discrimination (hereafter the CERD) General Recommendation 35: Combating Racist Hate Speech (2013) (hereafter the Recommendation), which the SAHRC is required to uphold, indicates similar contextual factors that must be considered in deciding whether or not an utterance is sanctionable as hate speech.
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