Hate speech regret comes too late

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When the first democratic elections were held in 1994, it signalled the end to an oppressive regime of legalised racial injustices. Soon, the South African Constitution was born out of a collective need for growth and reparation of past injustices. With the end of Apartheid, South Africa’s racial crimes were laid bare in front of the world stage and we are still reeling from the consequences of our muddied past. However, this did not spell the end of discrimination and affronts to human dignity.

Since then, South African life has largely been about growth. As we mature in age, both as individuals and as collective members of the Republic of South Africa, we are continually discovering new ways in which the remnants of our past still affect millions today. Because of this, regret is a biproduct of our maturity. However, the more we recognise the mistakes in our past actions and ways of thinking, the greater the responsibility becomes to rectify the failures of our earlier selves.

At the start of this year, many young women were preparing themselves to push their case for participation in the annual Miss South Africa beauty pageant. One of these hopefuls was Bianca Schoombee. Unfortunately for Bianca, her growing popularity in the build-up to the competition also meant increased scrutiny from the public she was trying to impress.

Her campaign was going well until an old tweet was unearthed, and then another. Soon it was clear: 14-year-old Bianca took her right to freedom of expression too far. Public and media backlash followed. And that was the end of her push for the envied crown. Her regret could not save her.
In another part of the world, George Floyd, a black American, was forcefully held down by white Minneapolis policemen and died soon after the incident, leading to a global spike in conversations about systemic injustices and racially motivated police brutality. However, the collective regret from the USA’s safety and security services could not save them from the aggressive protests that followed.

Clearly, we live in a world where race and gender issues (among others) are garnering much more attention, especially in the legal world that is attempting to bring justice where it is most necessary. And South Africa, steeped in racial history, is in many ways a breeding ground for law-making regarding issues of injustice and inequality.

At the most basic level, the Constitution details the rights of every South African and is one of the first considerations when new laws are made. One of the most basic rights found in section 16 of the Constitution, is that of freedom of expression. However, it is also made clear that the freedom of expression does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” To give greater clarity on matters of infringements of human dignity on discriminatory grounds, the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (the Act), was put into effect.

According to section 10 of the Act, any publication, propagation, advocacy or communication of words based on race, gender, sex, sexual orientation, age, disability or religion (among others) that are intended to be hurtful, harmful, or to incite, promote, or propagate hatred can be considered hate speech.

According to these qualifications, it would seem that social media is rife with instances of hurtful and harmful language that jeopardise the dignity of various identities and groups. In the digital world, public platforms like social media leave no room for error: every post, comment, and status is stored as a digital archive, most of which is freely accessible.

Because of this, there is more impetus than ever to make sure that our online language and publications preserve the human dignity of those around us. Our digital pasts are extremely vulnerable and may be more of a liability than an asset for many. Instances of hate speech can be prosecuted as crimen injuria, as it is an intentional affront to the dignity of another person. Furthermore, accusations of hate speech can be tested in an equality court with a range of legal consequences if guilt is proven.

With cases of documented racism, sexism, sexualism, and ableism increasing exponentially, a clear need is developing for more careful approaches to digital media. Engagements in discussions on gender, race, sexuality, etc. require even more deliberation in a world where one misstep could spell disastrous ramifications.

Not only do we have to be careful about the language that we use, but we also need to be very careful about the statements and posts that lurk in the recesses of our digital past. A thorough inspection of our internet histories is required to make sure that any harmful and hurtful language is removed – not only to save ourselves from legal action, but to hold the dignity of others in the highest regard.

While for some their digital histories may stay dormant forever, for many others, there will be an expiry date on their opportunity to reconcile the injustices of their digital past.

Reference list:

  • The Constitution of the Republic of South Africa, 1996.
  • The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).