hate speech Flashcards
What is the main purpose of the brief regarding Rachel Dhlamini?
To seek a legal opinion on whether the tweets constitute hate speech under section 10(1) of PEPUDA.
How is hate speech defined in the amended version of Section 10(1) of PEPUDA?
The use of words based on prohibited ground(s) that objectively shows the intent to be hateful and harmful.
What are the three conditions of liability for hate speech according to PEPUDA?
- Use of words
- Prohibited grounds
- Objective intent to be hateful and harmful
What does ‘use of words’ refer to in the context of hate speech?
Units of language that have meaning and can be spoken or written.
What are the four forms of ‘use of words’ as defined in section 10 of PEPUDA?
- Publication
- Propagation
- Advocate
- Communication
What is the significance of emojis in the context of hate speech according to the legal opinion?
Emojis are symbols used alongside text to communicate an idea, similar to flags in previous cases.
Under PEPUDA, what constitutes prohibited grounds?
Listed characteristics such as race, gender, sexual orientation, and analogous grounds.
Can hate speech be directed at an individual under PEPUDA?
Yes, if it reinforces broader discrimination.
What interpretative tests do courts use to assess prohibited grounds?
- Reasonable person standard
- Reasonably well-informed person standard
What does the objective standard in hate speech cases consider?
How a reasonable person would interpret the meaning in context.
What is the role of context in determining the meaning of expressions in hate speech cases?
Courts consider historical, political, and societal factors, not just the literal meaning.
What does ‘hatefulness’ in hate speech refer to?
Extreme detestation and vilification that can provoke discrimination and exclusion.
What distinguishes hate speech from simple disagreement or criticism?
Hate speech involves detestation, vilification, enmity, ill will, and malevolence.
What types of harm are recognized in hate speech cases?
- Psychological harm
- Group harm
- Societal harm
Is a causal link between what was said and actual harm required in hate speech cases?
No, a causal link is not required.
What is the likely interpretation of the content by a reasonable person in this case?
The LGBTQIA community is regarded by the speaker as not being normal.
What is the conclusion drawn in the legal opinion?
A court is likely to find that the tweets constitute hate speech.
The definition of hate speech
The amended version of Section 10(1) of PEPUDA defines hate speech as follows: the use of words based on prohibited ground(s) that objectively shows the intent to be hateful and harmful (as amended through/as seen in Qwelane.
from this definition, there are various notional ideas embedded therein that have developed in the following conditions of liability (NMF and Qwelane):
5.1 Use of words;
5.2 prohibited grounds; and
5.3 that objectively shows the intent to be hateful and harmful.
6. Each of these conditions/elements of liability will now be discussed in turn
Use of words
7.1. The definition of “words” units of language that have “meaning and can be spoken or written”
7.2 The four forms as defined in s10: Publication (to make information available to people, especially in a book,magazine, or newspaper”) ; Propogation (the act of spreading something… among a lot of people); Advocate (publicly support, or suggest an idea, development, or way of doing something); and communication (sharing information with others by speaking, writing, moving your body or using other signals).
7.3. The definition of communication is conveying ideas from on person to another.
7.4. Qwelane states that words are not to be understood literally in section 10, the court is concerned with is any medium capable of conveying an idea from one person to the next.
7.4. The NMF and Afriforum cases show us that flags and songs constitute a use of words.
Side note: The Qwelane case shows that you cannot commit hate speech within private settings.
- The law applies in this matter as follows:
8.1. In this case, we are dealing with two Xs by KSC. Those Xs contain both text and emojis. When it comes to the text, the units of language amount to an uncontroversial case of communication. An emoji is a symbol or a picture that is used alongside the text to communicate an idea. The written text in this case is analagous (similar) to the text that was used in the Qwelane case. The emoji in this case is analagous to the flag used in the NMF case.
8.2. The evidence that we have of communication to other people is the fact that KSC has over 200 followers on X, which is a public platform. It is therefore probable that other people saw the comment - Thus, it is probable that we have the use of words present in this case
Based on prohibited ground(s)
The relevant legal principles are:
10.1 Under S1 of PEPUDA prohibited grounds include listed characteristics, for example, race, gender and sexual orientation, but it also includes analagous grouds where we have to prove that there is prohibited grounds of discrimination (Masuku and Qwelane).
10.2 Qwelane shows that the prohibited grounds relate to targeted groups that have the potential to suffer discrimination, and not individuals. However, hate speech against a single person can still apply if it reinforces broader discrimination. (Q and NMF)
10.3. The courts use different interpretative tests. So Q and NMF use the reasonable person standard (uses it on face value), while Masuku and Afriforum use the reasonably well informed person standard (uses it with consideration for the broader context). [so the q is what is going to be used here].
Objectively shows the intent to be hateful and harmful
This element contains the following considerations:
13.1. The overarching objective standard;
13.2. Determining the meaning of the expression;
13.3. Determining whether the meaning is hateful
13.4. Determining whether the meaning is harmful.
14. Each of the these considerations will now be discussed in turn.
The Objective standard
- The relevant legal principles are:
15.1. We use the objective reasonable person standard (all the cases)
15.2. Liability is based on how the reasonable person would interpret the meaning in context and therefore we exclude the intent of the author and the perceptions of the target group (all the cases)
15.3. This approach avoids liability based on personal sensitivities but it also captures subtle forms of hateful speech which ensures a fair balance of competing interests. (all the cases)
Side note: The author cannot dictate what the text meant, and the reaction of the audience is not considered
The Meaning
The relevant legal principles are:
Courts determine meanings in context considering historical, political and societal factors and not just the plain literal meaning of the expression. (all the cases)
Important contextual factors include who the speaker is, the setting and medium of the expression, and its broader impact on society. (Masuku) (possibly Afriforum)
Expert evidence is useful in providing context, but courts have the final say on the legal meaning of an expression (Masuku and Afriforum) (PEPUDA allows witness’ statements)
Hateful
The relevant legal principles are:
17.1 Hatefulness is extreme detestation and vilification that can provoke discrimination and exclusion against the target (Qwelane) / Hateful goes beyond mere offensive and unpopular speech because this speech involves detestation and vilification which can lead to discriminatory activities (all four of the cases)
17.2 On the other hand, hate speech is not the same as disagreement, criticism or a strong opinion because it involves the following descriptors: detestation,vilification, enmity, illwill and malevolence (Qwelane and Masuku)
17.3 Hateful speech depicts the target group as being inferior, illegitimate, dangerous, and undeserving of equal treatment which re-enforces marginalisation and social division (Nelson Mandela.F and Masuku) [i.e. are they portrayed as being less than human]
