Focus of the Week

Thin line between freedom of speech and hate speech

Where the dividing is line between freedom of speech and hate speech, that is the extent to which, people may say what they want, without objectively infringing people’s rights is probably the most difficult question to answer when it comes to debates on freedom of speech.

Section 16 of the South African Constitution makes provision for both freedom of expression and its limitations. It states that everyone has the right to freedom of expression, which include (a) freedom of 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. This however, does not extend to propaganda of war, incitement of imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. In addition, the right is subject to a general limitation in Clause 36 of the Constitution.

In many instances section 16 (2) of Constitutions has been misinterpreted as banning of all forms of hate speech. However, the Constitution does not extend protection to a very narrow form of hate speech. The terms used in section 16 (2) such as “imminent violence” and “constitute incitement to cause harm” are the key words. The Constitutional Court’s ruling last week in favour of Radio 786, in the case of South African Jewish Board of Director (SAJBOD) and Independent Broadcasting Authority (IBA) now Independent Complaints Authority for South Africa (ICASA) versus Radio 786 on the constitutionality of Clause 2(a) which deals with the Code of Conduct for Broadcasters is evidence to this.

Clause 2(a) states that broadcasters shall not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of the population or likely to prejudice the safety of the State or the public order or relations between sections of the population.

What should be noted is that material that offends a section of the population does not offend everybody. What offends one section of the population may interest another section and those people have the right to hear, and form opinions on that material or subject.

The Publications Act of 1974 made use of similar language, enabling the authorities to censor material that was deemed indecent, obscene or offensive to public morals. This Act was one of the first to be amended to bring the regulation of films and publications into line with the then new constitutional guarantee of freedom of expression.

It its ruling against the IBA and SAJBOD the Constitutional Court accepted Radio 786’s contention of the wide-ranging nature of the prohibition in Clause 2 (a). According to the Court the prohibition is so widely phrased and so far reaching that it would be difficult to know before hand what is really permitted or prohibited. No intelligible standard has been provided to assist in the determination of the scope of the prohibition. It would deny both broadcasters and their audiences the right to hear, form and freely express and disseminate their opinions and views on a wide range of subjects.

The Constitutional Court judgement followed SAJBOD’s complaint to the IBA that Radio 786’s programmed which was aired in May 1998 that dealt with “Zionism and the State of Israel” with Dr Yaqub Zaki as a guest violated Clause 2 (a) of the Broadcast Code of Conduct. Dr Zaki said something to the effect that not all Jewish people who died in the concentration camps during holocaust were actually killed by the Nazis and that some died of disease.

The IBA found Radio 786 guilty under Clause 2 (a) and the station contested the matter in the Constitutional Court arguing that the clause was unconstitutional. Radio 786’s victory is important in the argument of shooting the messenger.

It is a known fact there is considerable tension between the Jewish people and the Muslim people. The conflict, which has resulted in the loss of many lives in the Middle East, has also translate into tensions between South African Jewish people and Muslims.

When Radio 786, hosted Dr Zaki it was in the interest of getting the Muslim people’s opinion on the conflict and allowing people to begin to talk about the issue. It was then a mistake for SAJBOD to accuse Radio 786 of misconduct for trying to raise debates and for statements made by their guest. The government and the legislature should have moved faster and amend the Code of Conduct.

Government spying on computers

This week the Mail and Guardian newspaper reported that the South African Police Service cyber crimes division and National Defence Force intelligence division both bought copies of the tool - a software package named Data Interception by Remote Transmission, or Dirt. The technology can access sensitive computer files and e-mail communications. The newspaper alleged the National Intelligence Agency (NIA) considered buying a more powerful version, but refuses to confirm or deny it obtained the technology. The Freedom of Expression Institute condemns the government’s threat to free flow of information by threatening people’s privacy in communication. Instead the government should have used the millions it is spending creating technology that will improve communication.

Journalists protest irrelevant questions

Journalists who applied for clearance to cover the South African president’s activities protested against what they saw as irrelevant questions raised in the questionnaire. According to the Sunday Independent newspaper of Sunday 21 April, journalists were required to say whom they slept with, or whether they are homosexual or heterosexual.