By Ben Winks via Mail & Guardian
The press ombud’s ruling against Huffington Post SA highlights the confusion of South Africa’s laws on offensive speech. Ominously, it threatens to banish any challenging discourse on inequality.
The piece in question, “Could it be time to deny white men the franchise?”, was published as a blog by Huf fPost and attributed to Shelley Garland. It emerged that the author was one Marius Roodt, who claims he contrived the “silly piece” to expose “the lack of fact-checking in South African journalism”. Thus he laced the piece with inaccurate statistics from other articles, for example that white people owned 90% of South Africa’s land and 97% of all shares on the JSE.
What was particularly provocative was the call for white men to be denied the right to vote for one generation to “allow legislation to be passed which could see the world’s wealth far more equitably shared”.
As a member of the Press Council (the self-regulatory body for South Africa’s media), HuffPost is subject to its code of ethics. The ombud, Johan Retief, received three complaints from white men claiming the Huf fPost violated the code’s prohibitions on discrimination and hate speech by publishing the piece.
In a brusque ruling, Retief found that the Huf fPost had breached:
• Sections 5.1 and 5.2 of the code, by publishing “text that was discriminatory and denigratory, and which amounted to hate speech”;
• Section 7 of the code, by publishing “comment” that was “extreme, unjust, exaggerated and prejudiced”, and could not constitute “protected comment”, as it was “not in the public interest (rather against it)”, could “be described as malicious”, and had “not taken fair account of all material facts that are substantially true”;
• The code’s preamble, by failing to verify the identity of the writer, and thus contributing “to the erosion of public trust in the media”; and
• Section 3.3, by “impairing the dignity and reputation of many people in that group” (white males).
Retief offered little analysis of the text itself, and no legal authority.
Section 5.1 says: “Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people’s race, gender, [and so on]”. A methodical application of the provision would entail: identifying each reference to race or gender, assessing whether any were “discriminatory or denigratory”; and, if so, assessing whether they were “strictly relevant” and made “in the public interest”.
In Retief’s judgment, “disenfranchisement of anybody” is discriminatory by definition, and “the reasons given for such a malicious suggestion certainly were denigratory”. He did not individually analyse any “references” to race and gender in the text, as the code requires. He did not define “discriminatory” or “denigratory” or refer to the equality clause in the Constitution or the vast body of case law, which explicitly permits and demands differential treatment on the basis of race and gender “to promote the achievement of equality”. Retief ignored the International Convention on the Elimination of Racial Discrimination, which provides that discrimination does not include special temporary measures designed to advance or protect disadvantaged groups.
He had to consider whether the exception applied — whether the references were “strictly relevant” and made “in the public interest”. Retief did “not believe for one moment discriminatory and denigratory opinions can be described as being in the public interest … To disenfranchise a section of the population … would indeed represent a huge step backwards”.
But Retief misconstrues the code. Denigratory “opinions” can hardly be in the public interest, but media “references” to them often are. The media is expected and obliged to apprise the public of relevant controversies, including robust discourse on racial and gender inequality. Retief’s interpretation renders the exception meaningless. Denigratory references are inherently hostile to the public interest — that is why the rule exists. So Retief was wrong to apply this provision: it concerns news reportage, not opinions.
Section 5.2 of the code, echoing the Constitution, prohibits “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. This is often cited as the legal definition of “hate speech” in South Africa. That is not quite true. The Constitution states that freedom of expression can never extend to such extreme speech, but it permits the residual right to be limited by other laws to any extent that is reasonable and justifiable in an open and democratic society.
To this end, the Promotion of Equality and Prevention of Unfair Discrimination Act defines “hate speech” much more widely, as any words intended to “be hurtful; be harmful or incite harm; or promote or propagate hatred” based on race, gender and other discriminatory grounds. It does not require incitement to violence.
Section 5.2 employs the constitutional prohibition on “advocacy of hatred … that constitutes incitement to cause harm”. Retief conflated section 5.2 with 5.1 and suggested that “discriminatory or denigratory references to people’s race, gender, etc” always amount to “hate speech”. This makes no sense. Yet Retief deemed the blog to be hate speech because it was “inflammatory, discriminatory and targeting a specific group of people”. Retief found those terms not in Section 5.2 of the Code but, bizarrely, in an obscure online opinion by a Kenyan academic.
Retief did not define “advocacy”, “hatred”, “incitement” or “harm”. He cited none of the Constitutional Court’s precedents on derogatory speech, and none of the several Equality Court judgments defining hate speech.
Retief was also constitutionally bound to consider international law, the source of the prohibition on hate speech. He would have found helpful guidance from the International Criminal Tribunal for Rwanda that tried perpetrators of the 1994 genocide. Convicting the editors of a radio show and a magazine that had called Tutsi people “cockroaches”, the trial chamber said: “Hate speech is a discriminatory form of aggression that destroys the dignity of those in the group under attack. It creates a lesser status not only in the eyes of the group members themselves but also in the eyes of others who perceive and treat them as less than human.”
The Garland blog falls far below this threshold of “hatred”. It does not describe white men as subhuman, nor as bearing any intrinsic characteristics that deserve to be despised. Rather, it depicts them as disproportionately powerful, economically and politically. The piece is illogical, impractical and, yes, prejudicial, but it does not advocate “hatred”. Retief advanced no authority for finding that it does.
It is also doubtful that the piece constitutes “incitement”, which in our law means that “the accused reached and sought to influence the mind of the other person towards the commission of a crime”. Huf fPost’s decision to publish the Garland piece, though provocative, could not seriously be expected or intended to mobilise people to remove white men from voting queues.
Retief provided no evidence for his dramatic conclusion that “the text itself did not directly propagate violence — but if the actions it advocates were ever put into practice, they might well lead to just that”. This is especially strange: the prohibition refers to “harm”, not “violence”. Disenfranchisement on its own is clearly “harm”, so Retief’s speculation was unnecessary.
In short, though the piece constituted advocacy of harm, it did not constitute, in law, advocacy of hatred or incitement to cause harm.
Retief correctly characterised the Garland piece as “advocacy” but, inexplicably, measured it against section 7 of the code, which concerns “protected comment”, rather than section 6 on “advocacy”. Section 7 says the media “are justified in strongly advocating their own views” but must make “fact and opinion clearly distinguishable” and not distort the facts.
Retief assumed, without analysis, that the blog constituted “comment”, found it “extreme, unjust, exaggerated and prejudiced”, and that it did not qualify for the protection afforded to such speech because “it was not in the public interest (rather against it)”, could be “described as malicious” and “has not taken fair account of all material facts that are substantially true”.
But the blog was not a “comment”, which, in the code, is the expression of an opinion on “actions or events”, not academic arguments. If Retief was correct to regard it as “comment”, he misapplied the principles. He noted that section 7 comes from the Constitutional Court’s view of “fair comment” as a defence against defamation in McBride vs The Citizen, yet failed to apply it.
Specifically, Retief’s finding that the blog was not “in the public interest” reveals a misunderstanding of the law. It requires only that the comment be made “on a matter of public interest”. It is absurd to suggest an opinion be “in the public interest”. The law can neither ask nor answer questions about the merit of any comment on public affairs, but only whether it is genuinely commenting on a matter of public interest.
Likewise, Retief misunderstands “malice”, a legal term of art meaning ulterior motive, which he neither sought nor found in Huf fPost’s publication of the blog.
Joe Thloloe, the Press Council’s executive director, is seeking to overturn the ruling before the Press Appeals Panel. It may be hoped the appeal will lead to more rigorous analysis of the legal limits of speech, and that the public is saved from the inhibiting impact of Retief’s ruling.
Ben Winks is an independent advocate specialising in constitutional and international law, and a visiting researcher at the University of Johannesburg.