New hate speech bill planned for South Africa to protect the marginalized groups

The proposed amendments to South Africa’s hate speech legislation should aim at protecting the dignity of marginalized groups. Not the kind of dignity that is affronted when you dress up proudly in your smartest clothes and someone says you look like a clown, but the kind of dignity that is undermined when you are already thought of as less-than-human and someone in power says you should be crushed like a cockroach.

The government is looking to strengthen current anti-hate speech law by enacting the Prevention and Combating of Hate Crimes and Hate Speech Bill (Hate Speech Bill). This proposed legislation goes a step further than simply prohibiting hate speech; it explicitly criminalises such speech, whether it is formally published, or communicated verbally or through social media platforms. It goes further than existing rules that prohibit speech deemed to be “harmful or to incite harm” or to “promote or propagate hatred” under the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), otherwise known as the Equality Act.

According to the new Hate Speech Bill:

“Any person who intentionally publishes, propagates or advocates anything or communicates 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,

is guilty of hate speech. This definition has been rightly criticised as both too broad and too vague. As it stands, it places no limits on what is considered harmful. Speech that harms someone’s sense of self-importance or harms their chances of getting away with cheating on their spouse would effectively constitute hate speech. Offending someone with what you say is a form of harm, so merely offensive speech also counts as hate speech on this definition.

Basing the definition of hate speech on the notion of dignity could avoid this problem. Aside from a brief mention in the preamble of the bill that talks about the right to inherent dignity, the term is absent when the objectives of the bill are listed and barely appears in the rest of the text. This is a major flaw in the drafting of this bill. The reason that incitement to harm or the propagation of hatred that the bill invokes is typically defined as hate speech, rather than simply offensive speech, is because it undermines the dignity of people belonging to a socially disadvantaged group.

Dignity here can be thought of as the right each of us has not to “face hostility, violence, discrimination, or exclusion by others” in our daily lives, as law professor Jeremy Waldron puts it. He points out that it is marginalized groups who disproportionately have their dignity undermined by this kind of speech. This is why hate speech legislation should be aimed at protecting marginalized groups by appealing to their members’ right to dignity.

This is a much stronger conception of dignity than how we normally think of it. It is not the kind of dignity that is affronted when you dress up proudly in your smartest clothes and someone says you look like a clown. It is the kind of dignity that is undermined when you are already thought of as less than human and someone in power says you should be crushed like a cockroach.

We would like to make a small revision to the definition of hate speech that better takes this into account, so that:

“Any person who undermines the dignity of an individual or group by intentionally publishing, propagating or advocating anything or communicating 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,

“Based on one or more of the following grounds: 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” is guilty of hate speech. The proposed addition to the definition may be seen as pedantic. It might be argued that dignity underpins all of our constitutional rights, so its role in the definition of hate speech is already implicit. We disagree with this assessment. Not including an explicit reference to dignity would lead to a Hate Speech Bill that (once enacted) could be used to stamp out simply offensive speech, which would harm all of us and especially the marginalised communities it is meant to protect.

For example, if a white South African woman was called a “Karen” (a term used on social media to describe white women who are perceived to be oblivious to their white privilege) then, under the current definition, the woman in question could submit an affidavit, explaining how she was psychologically harmed by others’ use of the term, and how the term incites hatred against all white women.

However, the term “Karen” is not hate speech. As offensive as the term might be towards white women, it is just that — offensive. It falls short of the label “hate speech” because white women do hold privileges in South Africa on the basis of their race (if not their gender). Pointing that out is not an assault on their dignity in the sense used here, nor would it lead to their systemic marginalisation. It is true that white women may be victims of hate speech based on their gender — sexist speech does constitute an assault on women’s dignity. But the term “Karen” alludes to their racial privilege, not their gender disadvantage. So while it may be offensive to white women, it should not be labelled as hate speech.

This does not mean that no privileged person can be subject to hate speech. The “Dubul’ iBhunu/Shoot the Boer” song is a prime example of this. Most often, though, societal conditions make harmful speech very unlikely to constitute an actual assault on a privileged group’s dignity. This is because they usually possess the social and economic power to bypass the more odious effects of harmful speech. The same cannot be said for marginalised groups. Harmful speech, or speech that incites hatred towards these groups, cannot be so easily set aside. They usually do not have the social privileges to ensure this; the fact that individual members of those groups may have that ability does not make the point any less salient.

The Hate Speech Bill must protect everyone from hate speech, and the terrible consequences that it has for society. At the same time, the bill must also show awareness of structural power and the ways in which it makes certain groups more vulnerable to harmful speech.

Some legal commentators (such as law professor Pierre de Vos) use examples like that of “Karen” as an argument against the hate speech provisions of the act altogether. We do not believe this is the best solution. Rather, we believe in preventing the provisions from including merely offensive speech, by upholding the primacy of dignity as a social and political value.

In doing this, we recognise that certain groups have long been subject to the indignities of discrimination and inequality — black South Africans, women, members of the LGBTQIA+ community, people living with disabilities, expats from other African countries, and many more. This recognition would ensure that these groups have legal protection from the worst consequences of speech that demeans them. Because their dignity (as people who are secure enough to live their lives without fear or external hostility) is so precarious, owing to the high levels of racism, sexism, homophobia, and so on, it is important for this notion of dignity to be included in the definition of hate speech.

This brings us to the false dichotomy that pits freedom of speech against dignity for marginalised groups. It is usually taken to be obvious that we can have one, but only with less of the other: We can either have a society that allows complete free expression, not restricting speech at all and allowing even the most morally deplorable opinions to be made public. Or, the only other option is for us to reduce freedom of speech, to protect the dignity of marginalised groups.

But this opposition of freedom and protection is an illusion. Hate speech legislation can actually increase freedom of speech, rather than curtail it. On the face of it, this seems paradoxical. Hate speech legislation, by definition, is designed to ban certain forms of speech from public discourse. How can the very same legislation increase free speech? Quite easily, it turns out.

The main problem with arguments for free speech is that they are often invoked when a powerful, privileged person provokes social outrage by saying something degrading to a marginalised person or group. What is then cast as the defence of free speech is actually a demand for the powerful not to face any consequences for using harmful speech.

Some free speech proponents do have good intentions, genuinely fearing that banning harmful speech will diminish the quality of public debate. However, they seem not to understand the implications of unfettered free speech without consequences.

In a society with unregulated free speech, powerful individuals — who already monopolise the media we consume — have licence to say deplorable things about marginalised people. But marginalised people have no platforms to counter those claims with the truth. This power imbalance leads to further decreases in marginalised groups’ social standing, while the already-privileged gain even more power and influence.

In many ways, this is the society we are currently living in.

Properly formulated hate speech legislation would empower marginalised groups with legal recourse against speech that attempts to diminish their dignity. In the absence of large-scale structural reforms in the economy, the law is one of the only tools that marginalised communities have to uphold, and reinforce, their inherent dignity.

It is as simple as this: if members of marginalised groups do not feel that their sense of self and wellbeing are at such risk when they speak out, they will feel more comfortable doing so. And, if our goal is to have more free speech for more individuals, then hate speech legislation can be a significant contributor towards this. Fear of being subject to hate speech decreases people’s ability and desire to participate fully in society. Limiting hate speech makes it safer and easier for marginalised groups to join the conversation.

A clear example is the violent hate speech black people and women — especially black women — are subject to on social media platforms such as Twitter. The company’s failure to protect users against hate speech has forced a great number of people to be silent, actually suppressing freedom of speech.

It seems counterintuitive, but focusing primarily on freedom of speech actually leads to less diversity in speech, fewer thought-provoking viewpoints, and more repetition by the same people of the same biased perspectives that our society is already inundated with.

In short, unregulated freedom of speech leads to less overall freedom of speech. But effective hate speech legislation — that gives a central place to the value of dignity — can help freedom of speech to thrive. This is something for the Portfolio Committee on Justice and Correctional Services to consider, as they record submissions for the Prevention and Combating of Hate Crimes and Hate Speech Bill.