A monkey is an animal with a long tail, a term which is used to refer to any primate. In the English language it can refer to a mischievous person, for example a child. In German it is rather an insult for dumb persons. In Africa it is a deeply racist slur. Comparing black people to monkeys and defaming them as simians reminds them of their oppression in the Apartheid era. It is a phrase against the human dignity of black people and it impedes the building of a non-racist society.
In January this year Penny Sparrow, a real estate agent and former member of the Democratic Alliance (DA) - the opposition party to the ANC, compared black people that celebrated New year’s Day on the beach in Durban to monkeys because of the dirt they left there in a Facebook post.
With the ensuing outcry on social media at the beginning of the year the call for a bill that makes hate speech a crime got louder. With this bill Sparrow could face up to three years in prison for a first-time offence. The Department of Justice introduced the draft bill for comments to the public in October this year. It has since been criticised for infringing on the right of freedom of expression because hate speech is vaguely defined as “any communication whatsoever” - meaning gestures, oral or electronic communication - that “advocates hatred” and incites violence or causes contempt or ridicule. As there is a much greater need to make amendments, the bill is now open for comments from the public until January 31 in 2017 instead of December 1 2016. The Preamble says that with the constitution South Africa committed itself “to establish a society that is based on democratic values of social justice, human dignity, equality and the advancement of human rights and freedom, non-racialism and non-sexism.”
But is a new law really the right instrument for a country that has to overcome the scars of its past? By adopting the new law, South Africa would join other countries, such as Germany where hate speech is already a crime.
With a complaint about hate speech, the ANC took Penny Sparrow to the Equality Court - a body established in the post-apartheid era to deal with discrimination. In June, Sparrow was ordered to pay R150 000 as a remedial payment to the Oliver and Adelaide Tambo Foundation and to apologize. The magistrate found that the facebook post amounts to hate speech and is an assault on the dignity of black people. In September the Criminal Court matter followed, where Sparrow faced the criminal charge of crimen injuria and she pleaded guilty to it. Crimen injuria is a common law offence and is defined as “unlawfully and intentionally impairing the dignity or privacy of another person “. As a result of a plea agreement she was fined R5000 by the magistrate. The alternative would have been 12 months imprisonment. Furthermore she was sentenced to two years in prison, suspended for five years. Sparrow unsuccessfully attempted to apply for leave to appeal the Equality Court judgement in July because her application was irregular in terms of the court’s rules. In November the court ruled that she has to pay for the ANC’s legal costs.
In South Africa there is no legal definition for hate speech, but South Africa’s constitution guarantees freedom of expression, with an exception: “advocacy of hatred that is based on race, ethnicity, gender or religion, and constitutes incitement to cause harm.” This limitation is often the definition for hate speech. Sheniece Linderboom from the Freedom of Expression Institute (FXI) is trying to draw a line between free speech and hate speech.
Another legal instrument is the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, often referred to as the Equality Act. The definition of hate speech is much broader here, since it includes expressions that are “hurtful”, “harmful” or that will “incite harm” or “promote or propagate hatred.” This is evidence of the problem of defining hate speech. Sparrow’s comment was most definitely hurtful, but did it incite harm?
The question is ‘What is hate speech?’ and can Penny Sparrows comment on facebook be defined as hate speech with the existing legislation in South Africa? Justine Limpitlaw, law expert based in Johannesburg, shares her thoughts on this.
Penny Sparrow was not the only one who wrote a hateful comment on social media. At the start of 2016 several people used the platforms to let go of their anger or shared thoughts that could considered harmful. Some as a reaction to Sparrow’s comment.
Wendy Kahn, National Director at the South African Jewish Board of Deputies (SAJBD), finds that these incidences definitely had an impact on society.
South Africa is not the only country that has to fight with the remnants of its past. In Germany hate speech has increasingly appeared on social media platforms since the beginning of the refugee crisis in September 2015. People use the relative anonymity of social media to disseminate their frustration. Most of the comments are racist, violate the dignity of others and fuel the hatred against refugees, jews or foreigners. False reports about the benefits of refugees are very common. There is not one article published by the German media that isn’t misused to express the frustration about the situation in Germany. Hate speech - “Hassrede” - is not legally defined in legislation. As well as in South Africa, hate speech is a limitation on freedom of expression. Generally, everyone can say what he or she thinks since freedom of expression is protected under the basic law in Germany. Freedom of expression includes not only value judgments, but also true statements of fact, as far as they contribute to the forming of an opinion. Untruthful statements of fact are not protected under article 5 of the German basic law. But the right to freedom of expression is only valid as long as you don’t infringe the personal right of others e.g. infringing their human dignity by degrading defamation. Criminal offences are also not protected under the freedom of expression. Common offences on social media are: §130 incitement of popular hatred (“Volksverhetzung”), §111 public incitement to crime (“öffentliche Aufforderung zu Straftaten”), §185 Insult (“Beleidigung”), §186 Defamation (“Üble Nachrede”), § 187 Intentional Defamation (“Verleumdung”). The incitement of popular hatred comes closest to a definition for hate speech. Someone who publicly “incites hatred against a national, racial, religious group or a group defined by their ethnic origins, or calls for violent or arbitrary measures against them; or assaults the human dignity of others“ can be punished for incitement of popular hatred. Holocaust denial can also be an offence under this law. The federal criminal police office recorded a rise of 40 % from 2,670 to 4,513 of cases of the incitement of popular hatred from 2014 to 2015.
Germany also had a tough start to the year after a group of 1000 men with foreign backgrounds sexually assaulted women on New Year’ eve in Cologne. Many people used this incident to bait refugees. One example is a 20 year old who was convicted of public incitement of crime and incitement of public hatred after he called for the burning of police departments on facebook and accused refugees of abusing children in the context of New Years eve. He had to pay a fine of 1500 € and received a six month suspended sentence. Several of these comments can be found on social media websites in Germany, especially Facebook.
Hate speech is not a new phenomenon, but with the boom of social media, hate speech shifted to these new platforms. And it is much easier to type a few words online and hide behind anonymity, than actually saying opinions out loud. This is why social media becomes more and more anti-social. Linderboom about this phenomenon:
And the use of social media platforms increases constantly. The most popular platform in Germany as well as in South Africa is Facebook. A quarter of all South Africans uses Facebook.
The case of Penny Sparrow also makes it clear how difficult it is for social media platforms to delete racist comments/ hate speech. The cultural differences from country to country transform the word ‘monkey’ either to a harmful incitement or to a nickname for cheeky children. Another big problem appears when the people write anonymously. How much stamina must one have when trying to get the identity of an offender from Facebook, as the following example shows.
Social media platforms have strong policies against hate speech and they have been improved with the rise of more and more hate in recent years.
Facebook mentions counter speech in its policy, since more speech is the best antidote to hate speech. But does hate speech even invite discussion considering that bigoted people are normally not open to counter arguments? Or should comments just be deleted to sweep the problem away? This is what Germany tries in response to the overwhelming mass of people writing hateful comments regarding mainly refugees, foreigners and jews.
In September 2015, German Minister of Justice, Heiko Maas founded a task force with internet service providers - Google, Facebook Twitter-, civil rights organisations and media organisations from Germany. The aim is to fight hate speech on the Internet. Maas said in a press conference last year: “Everytime the limits of freedom of expression are exceeded, when it comes to offensive expressions - incitement of popular hatred, public incitement to crime- where people are threatened, this content must disappear from the internet.” The agreement was to delete comments within 24 hours. The set of agreed measures includes that the German law is applied consistently. One of the measures was also to form special teams within the internet service providers to deal with hate comments as well as the optimisation of the reporting and monitoring of hate comments.
At the beginning of 2016 Facebook started with a team of around 100 people to delete hate comments in Germany with the Bertelsmann subsidiary Arvato. Before that Facebook only had community operations teams in four locations worldwide - Dublin, California, Texas, Hyderabad/India.
“In Germany there was a special situation due to the refugee crisis,” says Emilar Ghandi, public policy manager for Facebook, based in Johannesburg, explaining why this kind of task force does not exist in other countries such as South Africa.
One year after the founding of the task force, Maas summarized that the deleting of hate comments only works if organisations report them. Private users are not taken seriously. Only 46% of the Facebook posts are deleted when reported by private users. Google/YouTube only deletes 10% and Twitter only 1%. In August 2016 around 100,000 comments were deleted from Facebook, but Facebook only exposed this one figure and there is neither information about the total number of reported comments nor about the development during the year.
If the percentage of deleted comments reported by private users doesn’t improve before the end of the year, Maas wants to take legal actions against the platform providers. This could include fines, if they don’t follow the agreements.
“The bill aims to address the increasing numbers of incidents of hate speech,” says Theresa Ross, a specialist state law advisor from the Department of Justice and Constitutional Development (DOJ&CD). The most often heard criticism of the draft bill is that it is too broad and that there are no exemptions or limitations e.g. for scientific, artistic, academic or creative expression. But the DOJ has the opinion: “Whether it’s in the bill or not, the constitution is supreme and guarantees the right to freedom of expression.” Others say that there are too many grounds for hate speech in the bill - 17 overall in comparison to four grounds in the constitution. There are also a lot of open questions that are not addressed in the bill. Is there a difference if people actively post hate speech or if they repost it and did not have the clear intention? Children also haven’t been taken into account. When are they or their parents guilty? Can the platform providers be charged if they don’t delete something? In terms of the responsibilities of media platforms, Ross states: “The aim was never to target platforms. The content does not come from platforms, but it comes from us as individuals.”
A general problem is that there are many different pieces of legislation which makes it hard for people to keep an overview of the topic.
The Film and Publications Act (FPA) from 1996 doesn’t make hate speech a crime, but it is an offence if a film or publication - which includes videos on YouTube or Facebook posts - is published after it has been refused classification by the Film and Publications Board because it contains hate speech. The definition of hate speech in the FPA is tailored to the one in the constitution. And here lies a problem: it could be legal to show something under the FPA, but it is a crime to actually say the same thing because of the broad definition in the Hate Speech Bill. In order to address some deficiencies of the FPA the Department of Communication introduced a Film and Publications Amendment Bill which was open to public comment from February until May 2016. The amendment bill was under attack for infringing on freedom of speech, which is why there have been changes made and it is due to be finalised by parliament this year.
The Electronic Communications and Transactions Act (ETCA) from 2002 regulates e-commerce in South Africa. According to the act, there are obligations on internet service providers to take down material that is being hosted by them in certain circumstances, which could also include hate speech.
The Cybercrimes and Cybersecurity Bill was published in August 2015 for public comments until December 2015 with the following comment of the DOJ&CD: “The draft bill aims to put in place a coherent and integrated cybersecurity legislative framework to address various shortcomings which exist in dealing with cybercrime and cybersecurity in the country.” Based on the ECTA it creates 20 new cybercrime offences. Section 17 prohibits the distribution of any data message “which advocates, promotes or incites hate, discrimination or violence” and makes any person who does it guilty of an offence. The grounds are not as broad as proposed in the new hate speech bill. There is also criticism that the bill threatens to infringe on freedom of expression.
In February 2016 the DOJ launched the draft National Action Plan to Combat Racism, Discrimination, Xenophobia and Related Intolerance (NAP) which was open for public comments until the end of August 2016. The NAP is intended to be complementary to existing legislation that addresses discrimination. In 2001 the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance was held in Durban. In terms of the Durban Declaration South Africa is mandated to create a National Action Plan, which is defined as a “basis for the development of a comprehensive public policy against racial discrimination”.
With all these laws that have an impact on hate speech, it becomes obvious how difficult it is to define hate speech. Therefore the government needs to remove complexity and simplify the legislation instead of creating new laws. Limpitlaw proposes that the bill be an amendment to the Equality Act.
Another issue is the question of the implementation of the Hate Speech Bill which will be the only way to find out if it is going to be a success. Since South Africa’s police service is already overstrained dealing with violent crimes, it is normally rather rare that non violent crimes result in a trial. The murder rate in South Africa is extremely high. The police recorded that there were nearly 34 murders per 100,000 people in the country and it has increased by 1% from 2014 to 2015. This means that South Africa is one of the ten countries with the highest murder rate in the world. In Germany for example, the rate is only 0,8 murders per 100,000 people. “It is very necessary that the police and other officials of implementation be trained on the new offences”, says Ross.
Justine Limpitlaw shares her opinion on the hate speech bill and its effects on hate speech in South Africa.
It is still a long way until the bill becomes law. First the Department of Justice will take the submissions into account, afterwards the bill gets approved by the cabinet and then the parliament itself will call for submissions.
Germany as well as South Africa have realised that hate exists in a whole new dimension due to the expansion of social media. But Germany has gone a step further in the fight against hate speech on social media. While South Africa is creating new laws, Germany is negotiating with the social media platforms, that are the breeding grounds for hate speech. Still, South Africa is taking a huge step in overcoming hate in the country, since the bill is a big sign that hate is not accepted. If put into law it will definitely act as a deterrent. Although hate is not only based race, it is the most common ground for hate in both countries. But one has to be careful in defining every racist statement as hate speech in South Africa, since speech is in fact protected by the constitution, if it doesn’t incite harm. In the end it is also the victim’s perspective that counts and speech can hurt people even though it isn’t hate speech. Hate just can’t be defined universally: some people have thick skin, others less. It is their perception that defines hate speech. Likewise the courts have to decide what is and what is not hate speech from case to case. But it is important to remember that hate which is expressed on social media always has consequences - whether it is hurtful, harmful or incites hatred.
South Africa and Germany - Two countries and two different examples of how to deal with hate speech on social media, but their aim is the same: To find a balance between protecting freedom of expression and discouraging hate speech. Two countries branded by their history that could set an example to the world on how to overcome hate in a deeply fragmented society.