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    The Danger of Vagueness

    Module 6: Hate Speech

    The obvious danger in regulating hate speech is that vagueness in the definition of what constitutes a criminal act will be used to penalise expression that has neither the intent nor the realistic possibility of inciting hatred.

    The Constitutional Court of South Africa recently reflected on this in the case of Qwelane v South African Human Rights Commission and Another.  Qwelane, who at the time was serving as South Africa’s ambassador to Uganda, had published a column in a local newspaper disparaging the “lifestyle and sexual preferences” of “homosexuals”.  The High Court found that the statement constituted hate speech as defined in the Equality Act, section 10 of which prohibits the publishing of hurtful statements that cause harm or spread hate.  Qwelane sought to have section 10 of the Equality Act declared unconstitutional on the basis that it infringed on the right to freedom of expression.  In 2019, the Supreme Court of Appeal (SCA) agreed the section was unconstitutional because it “extends far beyond the limitations on freedom of expression provided for in the Constitution and in many respects is unclear.”(1)

    The SCA deemed the section’s use of the word “hurtful” particularly vague, adding that all definitions of the word “are concerned with a person’s subjective emotions . . . in response to the actions of a third party.  This does not equate with causing harm or incitement to harm.”(2) Counsel for the South African Human Rights Commission contended, however, that:

    “Viewed from the equality and dignity lens, ‘hurtful’ is not merely concerned about the subjective emotions and feelings of a person in response to the actions of a third party — instead, it is concerned about injuries or impairments on a person’s dignity.”(3)

    The case hinges on whether homophobic slurs constitute incitement, and whether the definition of ‘hurtful’ in the Equality Act is sufficiently precise so as not to unduly restrict freedom of expression.  The Constitutional Court reserved judgment in September 2020.(4)

    Footnotes

    1. Supreme Court of Appeal of South Africa, Case no. 686/2018, (2018) (accessible at: http://www.saflii.org/za/cases/ZASCA/2019/167.pdf). Back
    2. Mail & Guardian, Sarah Smit, ‘The Qwelane case: when human rights meet human rights’ (2020) (accessible at: https://mg.co.za/news/2020-09-20-the-qwelane-case-when-human-rights-meet-human-rights/). Back
    3. Ibid. Back
    4. Daily Maverick, Greg Nicholson, ‘‘The best remedy for hateful speech is more speech’ Jon Qwelane’s advocate argues in ConCourt’ (2020) (accessible at: https://www.dailymaverick.co.za/article/2020-09-23-the-best-remedy-for-hateful-speech-is-more-speech-jon-qwelanes-advocate-argues-in-concourt/). Back