Demistifying Hate Speech under the PEPUDA

Abstract

The factual matrix that is considered in each hate speech case differs from that in the next. However, certain factors always remain key in the process of balancing the different constitutional rights at play: who the victim is, who the perpetrator is and the nature of the expression. Additional factors to be considered in deciding whether an expression constitutes hate speech include: historical associations; who the utterer is as against the victim(s); the audience that is addressed and where the utterance is made; and the prevailing social conditions. How South African courts and the South African Human Rights Commission factor in these specific issues in assessing whether an utterance constitutes hate speech is examined in this contribution. Applicable international law principles and comparable foreign law reveal certain areas of the South African hate speech protection requiring refinement.

Hate Speech Criteria: A Modular Approach to Task-Specific Hate Speech Definitions

“…The third distinction we propose is considering perpetrator characteristics (Geldenhuys and Kelly-Louw, 2020). It should be made explicit whether, for a particular task, it matters who the perpetrator is.…”

Cyber Peace

“…Another relevant example can be found in South Africa, in which political figures use the rhetoric of hate speech toward different communities in order to gain political support (Akhalbey, 2019;Meyer, 2019). The SAHRC has, in the past, analyzed and sanctioned some cases concerning the use of social media to promote hate speech (Geldenhuys and Kelly-Louw, 2020). However, it seems that its mandate does not cover those digital spoilers who express their thoughts in an offensive and disturbing way, pushing the limits of the right to freedom of speech.…”

Dismissals for Social Media Hate Speech in South Africa: Animalistic Dehumanisation and the Circulation of Racist Words and Images

“…‘Hate Speech,’ whether online or in the physical, is not a ‘universally defined concept’ [ 57 : 4, 120 : 325, 196 : 56]. Cassim characterises ‘hate speech’ as ‘the use of abusive, racist and disparaging comments, words or phrases directed against particular race, religion, ethnic background, gender or sexual preference’ [ 25 : 309].…”

“…Another derogatory racial descriptor for white bodies is the use of the term ‘boer.’ ‘Boer’ means ‘Afrikaner’ or ‘farmer’ [ 148 : 104–105], and is considered ‘offensive’ and ‘demeaning’ [ 168 : Mooi F [168]–[169]]. It has been noted that this term carries similar derogatory connotations to the ‘k-word’ [ 57 : 27, 114 ] 36 and its use has justified dismissal, even in instances where employees stated that such usage was acceptable in the workplace [ 226 : Dhlodhlo P [47], 161 : van der Merwe F [31]]. In the sample of the decisions manifesting racialised hate speech, 11% (13/120) of employees made specific reference to the term ‘boer.’ 37…”