The draft Prevention of Hate Crimes and Hate Speech Bill significantly widens the definition of hate speech but there are serious concerns, writes Anton Harber.
David Irving was an English historian who was discredited mainly during the 1970s when he claimed that Adolf Hitler had not ordered the extermination of the Jews, nor had he known about the Holocaust.
But when, in the late 1980s, he began to espouse Holocaust denial openly, he was charged in Austria – where Holocaust denialism is a criminal offence - and sentenced to three years' imprisonment. The sentence was reduced on appeal to time served – 13 months.
The trial projected him into the headlines, and he became infamous as the world's best-known Holocaust denier. From then on, he became a poster child for racist extremists and spent the next few years travelling the world, spreading these views to right-wing audiences.
This unintended consequence is something we know well from the apartheid era when publication, possession or dissemination of a wide range of speech, writing and other forms of expression were criminalised.
Bannings made books and documents more interesting and desirable, as the act of having them was in itself an expression of political defiance. As a result, many people went to great lengths and even risked their lives to acquire such material.
When in this period the police issued an order to confiscate all copies of the newspaper I then worked for, the Weekly Mail (now the Mail & Guardian), people would rush out to get a copy and it would usually sell out before the police arrived to take it. Those copies were then treasured, passed around and kept as collectors' pieces.
The lesson was clear: censorship laws often have the opposite effect of what was intended. Eric Berkowitz's detailed history of censorship in the West, Dangerous Ideas, demonstrates two striking things about the pattern of censorship over hundreds of years: it seldom kills ideas, but drives them underground to emerge other ways; and that it sometimes makes the censored person and their ideas more famous than ever. Think about Voltaire, or Socrates, or Biko.
It is ironic, then, that the current government may be making the same mistake. The draft Prevention of Hate Crimes and Hate Speech Bill proposes introducing prison sentences for the expression and distribution of hate speech.
Hate speech is a scourge that damages individuals, groups and the whole society and must be tackled firmly and effectively. Clause 3 of this proposed Bill makes any crime motivated by hate more serious, and it will carry a heavier penalty. This is excellent and welcome.
Criminalising hate speech, however, would be a mistake. For one thing, we already have adequate measures in our common law to deal with it. A person who expressed hate speech against another can be charged with crimen injuria, assault, incitement or under the Equality Act. Notorious racist Penny Sparrow's case is just one of many cases where crimen injuria has been used to deal effectively with hate speech, for example.
The addition of Clause 3 of the new Bill would mean that heavier sentences are handed out for such offences. Already, we are strengthening the court's hand in dealing with the scourge.
For another, criminalising hate speech will be unconstitutional. Parliament can only restrict freedom of expression if it is "reasonable and justifiable". Can it meet this threshold if there are already ways to deal with the problem which impinge less on free speech?
The Constitutional Court itself has warned – when EFF leader Julius Malema was charged for encouraging others to occupy land - of the "chilling effect" on free speech of the threat of a criminal sanction and made clear that laws limiting free speech should be as narrowly tailored as possible.
Like the Equality Act, this Bill significantly (and correctly) widens the definition of hate speech: whereas the Constitution says freedom of speech does not extend to the advocacy of hate "based on race, ethnicity, gender or religion", the new Bill adds to this list. It will now be illegal to promote hatred or harm based on someone's age, albinism, birth, colour, culture, disability, ethnic or social original, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, sex or sexual orientation.
And whereas the Constitution says that hate speech has to involve advocacy of hatred and incitement to cause harm, the Bill says it can be advocacy or incitement, which casts the net wider. It also enlarges the definition of harm to include not just physical harm but emotional, psychological, physical, social or economic harm. And it does not require intention: as long as a reasonable observer could construe the speech as intending to be harmful, one is guilty.
Criminalisation of distribution of hate speech
But while these expanded concepts of hate speech may be justifiable in the context of the Equality Act – where the sanctions are apologies, fines and damages – the same is not the case where the speaker faces a jail term.
The Bill even criminalises the distribution of hate speech, which is also likely to have the opposite effect to what is intended. Penny Sparrow and Adam Catzavelos, who filmed himself making racist remarks while on a Greek beach holiday, were both exposed for the racists they are when videos of them were shared online. The Bill, if enacted, would prevent that from happening.
All of this means that the Bill chips away at free speech in ways that are unneccessary and will possibly have the opposite effect to that intended.
If a criminal sanction is to be introduced into our law for hate speech, it should be for only the worst, most serious offences. This would be more in line with international recommendations and practice. The International Convention on the Elimination of All Forms of Racial Discrimination and the Durban Declaration, which came out of the 2001 UN World Conference Against Racism, recommended laws targeting only the most serious hate speech.
We must deal with hate speech, but it needs a sharp scalpel and a steady hand to be effective and avoid collateral damage. The draft Bill is like a drunk wielding a blunt chainsaw.
- Professor Anton Harber is executive director of the Campaign for Freedom of Expression (CFE), a non-partisan, non-profit body that works to defend and expand freedom of expression for all. The CFE made submissions on the Bill, assisted by Advocates Carol Steinberg SC, Stuart Scott, Tidimalo Ngakane and Professor Dario Milo.
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