Hate speech post can be prosecuted

Those who generate, or allow hate speech to be posted on Facebook, can be prosecuted in SA, even though the servers are hosted outside the country, lawyers say.

A post calling for the killing of white people was posted recently on the Pan Africanist Congress (PAC) Facebook page. Group administrator Anwar Adams has refused to take the post down.

In turn, the post has resulted in numerous other posts on the page inciting various race groups to harm each other, and general incitement to violence.

Adams told ITWeb he takes personal responsibility for the decision not to take the posts down and that it is part of the process of healing. He added that - since he does not believe there are white or black people, just one human race - there cannot be any hate speech.

Lance Michalson, of Michalsons Attorneys, says there are two issues here. Namely, whether the statement constitutes hate speech; and, if yes, whether a South African court can try the matter given that the publication is made on the Internet on a Web site whose servers are not situated in SA.

“Regarding the first issue, I have assumed that the statement does in fact constitute 'hate speech' (the constitutional definition of hate speech is very tight in that the context of the publication and the words used must be extreme and actively incite harm). I think the statement fulfils these criteria,” he says.

Michalson's answer to the second issue is that even though the hate speech took place on Facebook - whose servers, which house the content, are offshore - if the content is accessible in SA, then criminal proceedings could be instituted against the PAC.

“This could happen on the recommendation of the Equality Court, which would first have to hear the matter in terms of our legislation, which deals with hate speech. Hate speech is governed by the Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000). You will remember that in May last year a hate speech complaint was laid against [ANC Youth League leader] Julius Malema with the Equality Court,” he notes.

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act prohibits the publication, or communication of hate speech intended to do harm or incite hatred, he explains. Here proceedings can be instituted in terms of the Act in an “equality court” (which in essence is every magistrate's court in every High Court). After an enquiry is held, the court may make an order that the matter be submitted to the director of public prosecutions to institute criminal proceedings.

“Therefore, the medium [the Internet] is irrelevant,” Michalson says.

He says the “accessibility test” was laid down in the 2004 case of Tsichlas and Another vs Touchline Media.

“Although this test applies to online defamation, I think that its principles could be applied here as well. Traditionally, the defamatory statement occurs at the place where it is published. Because words (or images) contained on the Web site are published where they are accessed, a South African court could very well have jurisdiction,” Michalson says.

Carla Rafinetti, a director at legal firm Edward Nathan, says the Film and Publications Act could also come into play.

“This Act explicitly outlaws the publication (which includes the Internet) of material that advocates the promotion of war, violence or hatred,” she says.

Both lawyers say the owners of a Web site can be held liable for any comments posted there by outside parties as this becomes publication and points to various case law.