Actual cases

Navigating Freedom of Expression, Hate Speech and Equality

What did our highest courts say?

The judgment in the landmark case of Qwelane v South African Human Rights Commission has become a pivotal moment in the ongoing discourse surrounding the contentious balance between freedom of expression and the principles of equality in South Africa.

At its core, the case scrutinises the limits of free speech, particularly when that speech veers into the territory of hate speech, which is defined as any form of expression that incites violence, hatred, or discrimination against specific categories of people based on race, gender, sexual orientation and so on.

What is the background of the case?

In 2008, a journalist and radio talk show host instigated outrage when he published an opinion article titled "Call me names, but gay is not okay". In this article, he criticised the acceptance of homosexuality and called for the public to express opposition against the gay and lesbian community. His statements, which included disparaging remarks about LGBTQ+ individuals, were perceived as inflammatory and deeply harmful.

As a result, the South African Human Rights Commission (“SAHRC”) filed a complaint against him, stating that his comments amounted to hate speech. This case brought significant attention to the interpretation of section 16 of the Constitution, which enshrines the right to freedom of expression while also recognising that the right carries responsibilities and may be subject to limitations, especially when it intersects with issues of equality and dignity.

The Constitution is known for its strong protection of individual rights, yet it acknowledges that most of these rights are not absolute. Thus, while the Constitution explicitly protects freedom of expression, it also stipulates that this freedom does not protect hate speech. According to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“Equality Act”), hate speech is defined as any communication that incites violence or harmful action against a person or group based on the prohibited grounds, which includes race, gender, sexual orientation and so on.

The matter was taken to the Johannesburg High Court and Equality Court where it was affirmed that the remarks made in the article constituted hate speech and violated the dignity and equality rights of LGBTQ+ persons. 

However, an application was later brought in which he sought to have sections 10(1) and 11 of the Equality Act declared unconstitutional for infringing on his right to freedom of expression. He claimed that the provisions are too broad and vague, and they unjustifiably limit the right to free expression insofar as they include the terms “hurtful”, “harmful” and “to incite harm”. The court dismissed this argument and made the following ruling:

 “The offending statement is hurtful, harmful and incites propaganda hate towards the LGBT community.”

The ruling was followed by an order for the journalist to issue a written apology to be printed in a national newspaper. 

What did our highest courts say?

The case reached the Supreme Court of Appeal (“SCA”) who ruled that the statements were indeed hate speech as they were intentionally disrespectful and aimed at demeaning a specific community. Moreover, the SCA emphasised the importance of protecting vulnerable groups from discriminatory speech that undermines their dignity. It specifically underscored that hate speech is corrosive to the fabric of a democratic society and undermines the equality that South Africa seeks to achieve.

The Constitutional Court held that the term “hurtful” in section 10(1) of the Equality Act is indeed vague, while the other terms are not. This section of the Equality Act was declared unconstitutional to the extent that it includes the term “hurtful”. The Court indicated that the unconstitutionality could be remedied through the removal of the term. Subsequently, section 10 of the Equality Act has been amended to refer exclusively to speech that is harmful and incites hatred. 

What are the implications of this case?

The outcome of this case had significant implications for the future of free speech and highlighted the notion that while freedom of expression is one of the cornerstones of democracy, it does not grant individuals the liberty to spread messages of hate that can lead to violence and discrimination. The case defined the boundaries of acceptable speech while emphasising that the right to express opinions freely must be exercised responsibly, and such opinions may not extend to inciting hatred against marginalised groups or persons.

This case serves as a powerful reminder of the intricate challenges that are inherent in balancing freedom of expression with the protection of human dignity and equality. It highlights the ongoing global struggle to navigate the interplay between these fundamental rights. By asserting that hate speech is not protected under the guise of free expression, the ruling contributes to a more inclusive society where all individuals, irrespective of their sexual orientation, can enjoy their rights without fear of discrimination or violence. As societies evolve and encounter new challenges, cases like this one will continue to shape the legal framework of human rights.

Did you know…Hate speech is defined as any communication that incites violence or harmful action against a person or group based on the prohibited grounds, which includes race, gender, sexual orientation and so on.