Was “Hate Speech” Intended to Incite?

Hate speech that is intended to incite hostility, discrimination or violence falls under the type of expression that international law mandates must be restricted. Therefore, a key factor when dealing with hate speech cases is the requirement for there to have been an intention to incite action that is violent.

The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence,(1) compiled by a meeting of experts coordinated by the United Nations Office of the High Commissioner for Human Rights (OHCHR), proposes a six-part threshold test to establish whether expression rises to the threshold of being criminal. One of these is intent: “advocacy” and “incitement” are required, rather than mere distribution or circulation. Article 20 of the ICCPR also requires intent, as does the 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa.(2) Negligence and recklessness, therefore, do not rise to the standard of hate speech.

A prime example of this distinction is the case of Jersild v Denmark before the European Court of Human Rights (ECtHR). Jersild was a television journalist who made a documentary featuring interviews with members of a racist, neo-Nazi gang. He was prosecuted and convicted for propagating racist views. However, the ECtHR found that the journalist’s intent was to make a serious social inquiry exposing the views of the racist gangs, not to promote their views. There was a clear public interest in the media playing such a role:

“Taken as a whole, the feature could not objectively have appeared to have as its purpose the propagation of racist views and ideas. On the contrary, it clearly sought – by means of an interview – to expose, analyse and explain this particular group of youths, limited and frustrated by their social situation, with criminal records and violent attitudes, thus dealing with specific aspects of a matter that already then was of great public concern… The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to the discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.”(3)

The seminal South African case of Qwelane v South African Human Rights Commission in South Africa also dealt with the issue of intent, with the Constitutional Court holding that speech must have a clear intention both to “be harmful or to incite harm” and to “promote or propagate hatred” before it amounts to hate speech:

“A disjunctive reading would render the impugned section unconstitutional, since merely hurtful speech, with no element of hatred or incitement, could for example constitute prohibited hate speech. This would be an impermissible infringement of freedom of expression as it would bar speech that disturbs, offends and shocks.”

In another significant South African case heard by the Supreme Court of Appeal, Afriforum NPC v Nelson Mandela Foundation Trust, a non-governmental organisation brought a case after a protest in 2017 which included the display of the old apartheid South African national flag.(4)

The Nelson Mandela Foundation argued that displaying the flag brought back painful memories of the unjust apartheid system. Afriforum opposed the case, claiming that South African laws against hate speech only applied to spoken words and not to physically displaying a flag.

The Court, however, ruled that to uphold the spirit of the Constitution and international legal commitments, hate speech should be understood to encompass displaying a flag. Consequently, the Court decided that the showing of the old flag constituted hate speech and was not protected under the South African constitutional system. The Court emphasised that such displays are intentionally harmful, incite harm, and significantly impact an individual’s self-work and acceptance.