Must Violence or Hatred Actually Result?
Module 6: Hate Speech
Another tenet of the Rabat Plan of Action threshold test is the likelihood and imminence of violence.(1) Incitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for it to amount to a crime. Nevertheless, some degree of risk of resulting harm must be identified. This means that courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group. Courts in different jurisdictions have differed on just how likely the harm needs to be to constitute a criminal act.
For example, in South African Human Rights Commission v Khumalo,(2) the High Court of South Africa found that the respondent’s utterances against white people were hate speech, despite the fact that there was no evidence of an actual harm having being committed as a result of his statements, though they did clearly incite and advocate for violence.(3)
Online hate speech laws being used to stifle free speech
Many African states are increasingly resorting to new online hate speech laws to curb the flood of mis- and disinformation that arrived with the advent of the internet and social media. For example, in 2020 Ethiopia enacted the Hate Speech and Disinformation Prevention and Suppression Proclamation which, while having seemingly well-intentioned objectives, has been decried by civil society as a threat to freedom of expression and access to information online.(4)
Often this is because of:
- Overly broad definitions of hate speech and disinformation.
- Vague provisions that allow discretionary interpretation by law enforcers such as prosecutors and courts and enable the laws to abuse fundamental rights.
- Holding internet intermediaries liable for content policing.
- Providing for overly harsh and punitive penalties for violations.