Racist Posts on Social Media

Overview
 
A recent, heinous post on social media ignited national debate about hate speech, racism, crimen injuria and the right to freedom of expression. 
 
In the subsequent debate, amongst other things, Gareth Cliff was fired as an idols judge and Jawitz Properties went to great lengths to distance itself from the racist post and the person who made it.  Many politicians, including Mmusi Maimane, have had a say. Some discussion has even suggested amending the laws relating to hate speech.
 
In any event, the issues discussed are emotive and highly charged.  The point of this blog is not to debate white privilege or racism – rather, to look at the different legal concepts that have been discussed on social media, on radio talk shows and in various opinion pieces.
 
The impact of technology on social media
 
First, and by way of context, it is worth emphasizing the obvious: technology (and particularly social media) is inseparably integrated into our lives. The growth in Internet penetration continues unabated and year-on-year statistics, although slowing over the last five years, continue to show steady growth – particularly in developing countries.  To illustrate the point: it is estimated that in 1995 less than 1% of the global population had access to the Internet; in 2015, this number has swelled to more than 46% of the population. Further, in South Africa, it is estimated that just under 50% of the population has some form of Internet access (including mobile Internet connectivity): enormous growth, in any language!
 
Inevitably, with that much growth, disputes and criminal offences will increase.  The law must adapt.
 
Freedom of expression
 
What is it?  As pointed out by the Freedom of Expression Institute, it is the “liberty to be able to hold opinions and to impart and/or receive these as well as ideas and information to others in any form”.
As with many other countries, freedom of expression is constitutionally guaranteed in South Africa by section 16 of our Constitution of 1996.  The right is imperative to foster transparency, enable critical scrutiny, protect the marginalized and oppose corruption – however, in South Africa it is not an absolute right and does not give persons free reign to say (or post on social media) whatever they feel is appropriate.   Equally, venting anger or frustration cannot be done in a way that will infringe on the rights of others.  Therefore, the “I can say what I like because of freedom of expression” attitude that appears to dominate social media is simply incorrect. Criminal sanctions are possible and civil action likely if the mark is over-stepped.
Section 16(2) lists specific exclusions from the right to freedom of expression; these include hate speech, incitement to violence and propaganda for war.  Consequently, if the expression is classified as hate speech there is no constitutional protection (or any other form of protection) and civil and criminal action may follow.
What is Hate Speech?
 
Formal definitions vary, but it is essentially expression that advocates hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 
In Islamic Unity Convention v Independent Broadcasting Authority the court acknowledged that the concept of “harm” includes speech that impinges adversely on the dignity of others.  Crucially, expression that merely offends certain portions of a community does not amount to hate speech – the speech must cause “harm”.   
 
Consequently, a distinction must be drawn between expression that simply offends and expression that harms or is likely to cause harm.  This is often a tough distinction to make: the key here is the objective meaning of the words, and the likely effect the words will have on the individual in question while taking the context into account.  In Afriforum v Malema, the High Court stated that the true yardstick of hate speech is the effect of the words, objectively considered.
 
In addition, aside from the constitutional prohibition on hate speech, the Promotion of Equality and Prevention of Unfair Discrimination Act specifically prohibits hate speech.  This Act, it has been argued, creates a wider definition for hate speech by stating that no person may publish, propagate, advocate or communicate words, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful; to incite harm, and promote or propagate hatred.  Consequently, hate speech in terms of the constitution is a narrower concept (in comparison to the Act mentioned above) given that one must show the advocacy of hatred on a listed ground AND that incitement to cause harm.  Conversely, the Promotion of Equality and Prevention of Unfair Discrimination Act definition merely requires the conduct to be either hurtful OR harmful OR to incite harm which conduct promotes hatred.
 
Be that as it may, some, including a Mail & Guardian author, feel that Sparrow’s Facebook remark “wouldn’t count as hate speech as per the Constitution”, I am not so sure…  For more on this, see this insightful article on De Rebus discussing hate speech and this further Mail & Guardian article discussing whether further hate speech legislation is required. 
Briefly, the word “baboon” has been found to constitute hate speech in the context of the Promotion of Equality and Prevention of Unfair Discrimination Act and objectively, calling someone a monkey probably goes further than merely offending – in my view, it advocates hatred based on race – however, the question may be whether it is enough to constitute incitement to cause harm. 
Viewed differently, if I call someone a bitch, it is likely to offend but, objectively speaking, will probably not constitute hate speech.  Conversely, if I call someone a monkey or baboon, the likelihood is that the speech may cause harm and may therefore constitute hate speech.  It will certainly constitute hate speech in the context of the Promotion of Equality and Prevention of Unfair Discrimination Act, but whether it constitutes hate speech in terms of the constitution is debatable.  For more detail on this topic, see here or here.
How does crimen injuria fit into this issue?
 
 Crimen injuria is the unlawful and intentional impairment of the dignity or privacy of another person and is a criminal offence. In order to be guilty of this offence, the State must prove each element beyond a reasonable doubt.  This crime can also overlap with criminal defamation if the conduct impairs both dignity and reputation of another person.
However, in many decided cases on this issue, it appears that the conduct must refer to a particular person, and not merely a group of persons.  However, the legal test here will look at whether the complainant was aware of the degrading comments, and felt degraded by them (an impairment of the complainant’s dignitas).  Nowhere in the legal definition, and certainly in many criminal law text books[1]on the issue, is it a specific requirement that a person or individual is specifically referred to.   Therefore, it appears open to a court to use a comment such as Sparrow’s (of a wide nature, referring to a group of persons) and hold that the said comment offended a complainant who read the comments but was not specifically named or referred to.  This latter point is however open to debate it seems.
 
Further questions
 
Can a post on social media be both hate speech and crimen injuria? Simply, yes. The two are not mutually exclusive so a post on social media may well constitute a crime (crimen injuria, perhaps criminal defamation) and may also constitute a civil wrong whereby the complainant may pursue a civil action for damages.
 
Social media – how to deal with racist posts
 
Firstly, take a screen shot of the post so there is evidence once the post is inevitably deleted.  Where possible, do not engage with the poster.  Moreover, report the post to the platform concerned – all social media platforms have simple reporting mechanisms.  Finally, it is also probably worth the time and effort to report the issue with your local SAPS office and to lay a formal complaint.  It may also be wise to contact an attorney to investigate a civil claim and follow up on the criminal complaint.
 
Finally, if you are an employer, no matter the size of your business, it is important to have a solid social media policy in place so that when these types of issues arise, a clearly articulated policy is in place to deal with the offender if it is not a cut-and-dry issue such as the one discussed in the opening paragraph.

[1] See CR Snyman and Burchell and Milton.

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