When is speech hateful – and when is it hate speech?

South African journalists (and perhaps some bemused bystanders) have been consumed for the last week or so by a chain of events centred on the country’s instance of the Huffington Post.

In brief, this is what happened: Huff Post SA published a piece saying white men should be disenfranchised. This duly went viral. Then things got sticky. It transpired the piece had been written as a hoax by a white man trying to make a point about the way in which journalists publish things that confirm their own biases (at least that is my understanding). In the fall-out, that man has lost his job, the editor of the Huffington Post has resigned and many, many opinion pieces have been written.

More importantly, the country’s Press Ombudsman has pronounced on the issue, declaring that the original article was, among other things, hate speech.

I don’t intend to add to the many opinions about all this. Rather, I want to look at the issue of hate speech – from the point of view of a journalism trainer.

A crucial branch of training surrounds what are loosely called “legals” – the things that journalists need to know to keep them out of trouble with the law. I am not a lawyer – nor indeed are most of my colleagues – but I have over decades formed my own informal set of guidelines for assessing the copy in front of me. This is what I use to determine if something is hate speech (and indeed this is what I tell people when I am training them):

Hate speech is defined in our Constitution. Here is what it says:

Freedom of expression

(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.

(2) The right in subsection (1) does not extend to

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Translated: we have freedom of speech in this country but you can’t foment a war, incite violence or preach hatred that incites harm. You can say things that are hateful – but they don’t necessarily constitute hate speech. For that, another step is required. In my seat-of-the-pants example, you can say that the little green people from Mars are dirt-eaters (or whatever constitutes a racial slur on Mars) – but you can’t say that that little green people from Mars are dirt-eaters AND therefore should be lined up against a wall and shot. It is the extra step into violence that turns a statement into hate speech.

My initial reaction was to disagree (respectfully) with the Press Ombudsman – it did not seem to me that saying white men should be disenfranchised crossed the boundaries into hate speech. However, a long article by Justine Limpitlaw, electronic communications law consultant, trustee and board member at Media Monitoring Africa, has got me thinking. She argues, in essence, that the right to vote is so important in South Africa that advocating that it should be taken away does in fact amount to “harm”. She is saying that the harm envisaged in the Constitution does not necessarily only mean physical harm – and I think she is right. So I am back to thinking that the piece as published by Huffington Post is hate speech. That would not have been my call a week ago, though.

And so I will be watching with deep interest as Press Council Executive Director Joe Tholoe appeals this ruling. If nothing else has come out of this sorry episode, perhaps we will all gain greater clarity about what hate speech is – and is not.

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