Free Speech vs Hate Speech

There is a fine line between freedom of speech and hate speech.

This became apparent in media personality Gareth Cliff’s High Court case against M-Net this week in his attempts to be reinstated as an Idols SA judge – after the broadcaster axed him for a tweet he posted responding to a poll on whether racist outbursts be criminalised.

South Africa’s Constitution clearly states that everyone has the right to freedom of expression, which includes:
– (a) freedom of the press and other media;
– (b) freedom to receive or impart information or ideas;
– (c) freedom of artistic creativity; and,
– (d) academic freedom and freedom of scientific research.
But this right in does not extend to –
(a) propaganda for war;
(b) incitement of imminent violence; or,
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Now many of us already know that Cliff’s post came in the wake of the racist comments made by Penny Sparrow which marred the start of 2016 – and perhaps signalled the start of the tiresome journey of other prejudices we will in all probability have to deal with this year.

He responded to poll on Twitter on whether racial outburst should be criminalised and said that: “People really don’t understand free speech at all”.

According to the Equality Act no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to:
– (a) Be hurtful;
– (b) Be harmful or to incite harm;
– (c) Promote or propagate hatred.

In stating in part the preamble of the Constitution which reads:

“We, the people of South Africa recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country;
and Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to – Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society” – you may want to answer the following question.

Did Cliff create a perception that he was defending hate speech?

Perhaps, just perhaps, today’s court decision will help us evaluate this more clearly.



today in print

today in print