The Prevention and Combating of Hate Crimes and Hate Speech Bill or Hate Bill is a new draft Bill from Parliament. The Hate Bill criminalises hates crimes and hate speech. We all need to take notice of Hate Crimes and Hate Speech Bill, not least, because it creates two new criminal offences. The Bill, importantly, proposes a way for combating hateful acts and speech which is an important step in the transformation of our society. But, as conscientious and engaged citizens we also need to scrutinise any legislation that may be in conflict with other rights such as freedom of expression. But is the Hate Bill a good Bill? Is it going to work? And do we need a Hate Crimes and Hate Speech Bill?
What is a hate crime?
A hate crime offence which is motivated on the basis of prejudice, bias or intolerance towards the victim. This motivation is on the basis following characteristics or perceived characteristics:
- race or gender;
- sex, which includes intersex or sexual orientation, gender identity;
- ethnic or social origin;
- religion, belief, culture;
- language, nationality;
- HIV status;
- albinism; or
- rather unusually, occupation or trade.
The offence of a hate crime extends to any person who instigates, commands, directs, aids, promotes, advises, recruits, encourages or procures any other person to commit a hate crime or conspires with any other person to commit a hate crime. People found guilty of a hate crime can be fined or imprisoned. For a first offence the prison sentence is limited to 3 years and for a second offence it is limited to 10 years.
What is hate speech?
A person (including a juristic person like a company) is guilty of the offence of hate speech if they intentionally, by means of any communication, communicate in a manner that:
- advocates hatred towards any other person or group of persons; or
- is threatening, abusive or insulting towards another person or group;
- or demonstrates a clear intention to incite others to harm any person or group (whether or not they are harmed) or stir up violence against, or bring into contempt or ridicule, any person or group on the basis of the above-listed characteristics
In this section, hate speech includes bringing people into contempt or ridicule on the basis of the listed grounds. Where does this provision leave satire and comedy? One of the listed grounds is ‘occupation’ does this mean no more lawyer jokes? Lawyer jokes aside, many comedians are concerned that this provision will stifle their work and unjustifiably infringe on their right to freedom of expression.
The hate speech offence also includes anyone who makes available or displays an electronic communication which constitutes hate speech. The electronic communication system is one that is accessible by any member of the public e.g. a public message board on the Internet or accessible by a specific person e.g. a personal social media feed or wall. A person found guilty of hate speech can be fined or imprisoned.
Are there problems with the Hate Crimes and Hate Speech Bill?
Yes, there are. The Hate Bill raises several concerns. In general, the drafting is too broad and indiscriminate. Any Bill which infringes on other constitutional rights needs to clear and accurate. A specific drafting concern is the definition of ‘communication’ which is not a closed list of instances and therefore could be expanded on a case by case basis. This is too much flexibility for a Bill that limits freedom of expression. The section relating to hate speech also uses the phrase ‘display or make available’ this is again very broad and needs clarification. At present, it might mean that social networking websites and internet service providers who unwittingly host content that amounts to hate speech are guilty of a criminal offence.
Do we need a Hate Bill?
On a more general level, there needs to be an extensive investigation into whether the Hate Bill is really necessary or would be effective. There is considerable cross-over in purpose and applicability with the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Why do we need two very similar Acts? Is this a case of excessive law-making?
Those in favour of this kind of legislation argue that although it is impossible to outlaw hate; laws can and do shape social attitudes. Therefore, a Hate Bill is a critical step in the changing society and specifically addressing hate-motivated crimes.
However, from a legal perspective, the criminal offence of hate speech and hate crime focusses on motive rather than intention which is at odds with the structure of criminal law. Hate crimes also tend to re-criminalise acts that are already crimes which can be confusing.
There is also an argument that by defining crimes as crimes against specific groups rather than society as a whole this leads those groups to feel persecuted. This feeling of persecution can incite revenge crimes and lead to an increase in crime. Proponents of this argument go on to say that and hate speech are social problems that are unlikely to be fixed through prison time. Some argue that the motivation behind hate crimes and hate speech can only be effectively addressed by changing public and police attitudes. However, this argument does little to take into account the need for justice that many victims of hate crime and hate speech feel.
Comments on the Hate Crimes and Hate Speech Bill for the Department of Justice and Constitutional Development closed on the 1 December 2016. On the 3 February 2017, the Democratic Alliance announced they are tabling an amendment bill that will be released for public comment in March 2017. We will keep you updated on developments and provide our insights on the Hate Bill.
Actions you can take
- Keep informed on the progress of the Hate Crimes and Hate Speech Bill by signing up for our newsletter.
- Address the problems of hate speech on social media before they happen by getting us to draft a social media policy for your organisation.
- If you are dealing with problematic online content then have it removed by asking us to issue a take-down notice on your behalf.