Social media users were up in arms yesterday when civil rights organisation AfriForum laid criminal charges against 100 individuals, who it says posted messages containing hate speech, racism and incitement of violence on social media platforms.
The organisation says the affidavits were prepared with the assistance of the South African Police Service (SAPS) and criminal law expert Dr Llewellyn Curlewis.
According to media reports, some #FeesMustFall leaders such as Mcebo Dlamini and Busisiwe Seabe were named on the list of accused.
"There seems to be a general impression that whatever you say on social media is somehow acceptable and will not have any consequences. Public outrage and media coverage are also reserved for or limited to a select few statements on social media. We therefore invited the public to send us screenshots of hate speech, racism and incitement to violence. The response was overwhelming," says Ernst Roets, deputy CEO of AfriForum.
Identity verification
AfriForum says it requested the SAPS to investigate these 100 individuals without delay, to verify the identities of the persons behind these social media accounts and to charge them with the applicable offence.
The organisation also requested the SAPS to provide feedback on a regular basis and offered any assistance the organisation may be able to provide.
"We are concerned about the intensity of some of the messages and screenshots that we received. Unlike other cases that received significant attention in the media and which revolved mostly around racist slurs, many of the screenshots that we received contain calls to arms and requests or calls to kill or harm people.
"We are worried that, despite their more severe nature, these cases are not dealt with or condemned in the same manner," says Roets.
Lindsay Maasdorp, Black First Land First national spokesperson, whose name appears on the list, told The Daily Vox that he was unaware he was among those AfriForum intends to charge.
Below is what social media users said after the charges were laid:
"AfriForum laying charges on black people is the biggest joke ever. I blame the TRC for this white people still think they own SA."
"Why @afriforum doing SAPS duties? Is there something we missing?"
"If you were really genuine you would lay charges against all races. This is not about fighting racism. You are a racist org in sheep's skin."
John Giles, a legal advisor at law firm Michalsons, notes one of the laws government wants to use to regulate social media is already before Parliament. Sections 16 and 17 of the Cyber Bill will make many social media posts a crime, says Giles.
In December, government approved the introduction of the wildly criticised Cyber Crime and Cyber Security Bill after growing criticism regarding the lack of decisive policy and control over cyber crime.
"The regulation of social media is generally bad, but it can be good to stop things like revenge porn and racism. However, the impact on the freedom of expression will be severe and that will not be good for South Africa's democracy," he adds.
Online incitement
Okyerebea Ampofo-Anti, partner at Webber Wentzel, says it is important to remember there are no special laws that apply to social media.
"As a general principle, conduct which would be unlawful if done in 'real life' is also unlawful if done online. The real challenge with taking legal action against people based on their social media posts usually has to do with identifying the person and linking them to the posts if they have used a pseudonym."
She points out AfriForum will have to rely on some other criminal offence such as crimen injuria, which is the unlawful and intentional infringement of the dignity of another person. AfriForum could argue that racist comments and comments that amount to hate speech infringe on the dignity of the individuals against whom the comments are targeted, she explains.
According to Ampofo-Anti, incitement to commit any crime is a crime under the Riotous Assemblies Act. "Therefore, social media users who encourage others to commit any crimes such as assault, robbery or public violence could also face a charge of incitement - for example if you state that people should be violently dispossessed of their property, it could be argued that you are inciting other people to commit assault and robbery.
"It is crucial to remember that when interpreting any of these crimes, the court will also take into account the right to freedom of expression and try to apply the law in a manner that does not unduly limit freedom of expression. AfriForum will also have to prove these individuals who have been charged had a clear intention to commit the crimes in question."
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