On the one side of the coin, was the long-awaited Equality Court ruling, on 18 August 2017, that the homophobic article “Call me names – but gay is not ok” by Jonathan Dubula Qwelane (Qwelane), constituted hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (the Equality Act). This finding came as no surprise if one considers the context in which the article – from the Sunday Sun of 20 July 2008, crudely compared gay and lesbian relationships to bestiality, deserving no constitutional protection – was published. Evidence in the Court showed that the target market of the newspaper at the time was considered to be homophobic. Witnesses not only emphasised the high incidents of violence against the lesbian, gay, bisexual, transsexual and intersex (LGBTI) community but also reaffirmed the view that the article and the platform from which it was distributed had the potential to cause further victimisation of homosexuals. On this basis the Equality Court found that the article – in line with section 10(1) of the Equality Act – was hurtful, harmful and propagated hatred towards the LGBTI community.

The Equality Court’s finding on hate speech in the Qwelane matter reaffirms that the right to freedom of expression is vital to stimulate political debate in a democracy. However, the right is not unlimited and the State has a duty to protect vulnerable groups of people. From the evidence in the Equality Court it became clear that homosexuals are particularly vulnerable to victimisation, especially in rural areas. In this instance, it would be preposterous to consider that Qwelane’s article would stimulate debate that would contribute to a democratic society by equating gay and lesbian people to animals. What it rather does, is to fuel hatred and open the door to further victimisation.

The Qwelane matter is of great relevance, as section 10(1) of the Equality Act was specially challenged to be unconstitutional on the basis of vagueness and being over-broad. It has been a long-standing debate as to whether the hate speech provision in the Equality Act would succeed a constitutional challenge as it does not narrowly relate to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” as set out in section 16(2)(c) of the Constitution.

The Equality Court’s approach to this constitutional challenge was disappointing. Especially in light of the fact that the Court conceded that section 10(1) of the Equality Act is “manifestly broader” than the scope of section 16(2)(c) of the Constitution. Therefore the limitation on the right to freedom of expression could only be justified if it succeeds the limitation query in the Constitution. This limitation query essentially concerns a balancing of rights and various factors, such as the nature and extent of the limitation. The Equality Court held that the hate speech provision is not vague, as terms such as “harmful” and “hurtful are capable of “easy and intelligible meaning”. What is required from legislation is only “reasonably certainty” as otherwise it will hamper the State from fulfilling its social objectives. It is however not clear from the judgment how more constitutionally-aligned terminology would have hindered the State from meeting this objective.

Furthermore, Qwelane’s argument that the hate speech provision is overbroad – and therefore unconstitutional as it limits more speech than section 16(2)(c) of the Constitution – was also dismissed. It was argued that it stifles honest debate as certain sections of society will always find the expression to be “hurtful”. Emphasis was placed on the basis that the extent of harm that could be caused outweighs the interest of the speaker – justifying the limitation. Statutory exceptions also limit the potential over-broadness. However the Court did not consider the potential abuse of the use of this terminology outside this specific context.

The Qwelane judgment on the constitutional challenge is also more debatable if one considers the ruling by the Press Council’s Appeals Panel on the Huffington Post blog titled “Could it be time to deny  white men the franchise” of 22 August 2017. The Press Council’s Appeals Panel specifically found that the blog – which argued that white men should be denied the right to vote for 20 to 30 years so as to “strike a blow against toxic white masculinity” – did not violate the Press Code’s provisions relating to discriminatory and hate speech.

It has to be emphasised that the Press Code’s provisions in this regard mirror the Constitutional prohibition on hate speech – unlike that of the Equality Act. Furthermore, what the Appeals Panel was at pains to emphasise is that there was no real risk or serious harm to white men in this instance. It was also emphasised that the right to freedom of expression is vital  to allow the sharing of ideas.

In the Huffington Post matter there was great reliance on the constitutional meaning of hate speech. This is replicated almost to the word in the Press Code. Also, to qualify as hate speech, there must be real risk or significant potential harm to the group. The Qwelane matter specifically justified the hate speech provisions in the Equality Act, which is much broader. These two rulings – although distinct – appear to outline different boundaries to the concept of hate speech and leave one with very little guidance.

By Ms Christine Botha: Legal Officer, Centre for Constitutional Rights

*First published by News24