Hate speech as a limitation to freedom of expression
- Authors: Botha, Joanna Catherine
- Date: 2016
- Subjects: Freedom of speech -- South Africa , Hate speech -- South Africa , Civil rights -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/9054 , vital:26460
- Description: Hate speech in South Africa creates a tension between the right to freedom of expression and the rights to human dignity and equality. The challenge is to achieve a balance between these competing rights in the context of the divisive past and the transformative constitutional ideal, in which reconciliation and respect for group difference are promoted. Freedom of expression, an individual right, must be construed in light of its underlying values, but regard must also be given to communitarian interests. The constitutional standard draws the initial line. The advocacy of hatred on four grounds and which constitutes incitement to cause harm is not constitutionally protected speech. Such speech undermines nation building, causes acrimony, and is not tolerated in the egalitarian society envisaged by the Constitution. The thesis formulates a principled legislative hate speech framework for South Africa at both human rights and criminal levels within the parameters of the constitutional mandate, as guided by the standard for hate speech restrictions in international law, and the Canadian regulatory model. An essential premise is that regulation requires a multi-faceted balancing enquiry. A holistic approach is proposed where factors such as respect for the dignity of the victims, autonomy for speakers, listeners and the wider community; the causal link between hate speech and hatred in a community; and the desire to achieve a diverse and harmonious society; amongst others, are considered. Failure to regulate hate speech constructively endorses hatemongers and promotes damaging speech at the expense of vulnerable groups. Regulation ensures that law sets the normative benchmark, affirms the protection of vulnerable groups within the social fabric and upholds social cohesion, inclusiveness and the equal citizenship of all individuals in society. The thesis contains a proposal for the enactment of legislation creating a self-standing hate speech crime for the advocacy of extreme hatred, shaped in accordance with international requirements and comparative foreign law, and structured in light of the distinction between hate crime and hate speech. The existing legal framework is unable to provide consistent and fitting redress for the severe harm caused by such speech, namely the fostering of an environment in which the stigmatisation of groups is promoted, their exclusion from society justified and intervention is needed to remedy the escalated levels of hatred and violence between different groups in society. PEPUDA, a remedial statute aimed at promoting transformation and substantive equality, is valuable, but its speech prohibitions are broad and imprecise. Consequently, their effectiveness is compromised and their constitutionality questioned. The thesis proposes recommendations for amendments to sections 7(a), 10(1) and 12 of PEPUDA. The aim is to ensure compliance with the international standard and to foster the optimal regulation of hate speech and other forms of damaging speech, including derogatory racial epithets, which undermine human dignity and equality and threaten national unity. It is intended for the two systems to complement one another and to create a legal framework aimed at addressing hate speech constructively and in context, promoting tolerance, respect for difference, reconciliation and transformation.
- Full Text:
- Date Issued: 2016
The violence of language : contemporary hate speech and the suitability of legal measures regulating hate speech in South Africa
- Authors: Janse van Rensburg, Leanne
- Date: 2013
- Subjects: Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3663 , http://hdl.handle.net/10962/d1001866 , Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Description: This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints
- Full Text:
- Date Issued: 2013