As digital platforms increasingly shape public discourse, the newly-relaunched Free Speech Union South Africa (FSU SA) is preparing to defend freedom of speech in an era of growing scrutiny over what people say and share online.
Recently relaunched by the Free Market Foundation (FMF), the FSU SA joins a growing international network of organisations dedicated to protecting freedom of expression.
Originally established in the UK in 2020 by Toby Young, the Free Speech Union has expanded to several countries, including Canada, Australia, New Zealand and SA.
The union was first established in SA in 2022 under the leadership of Sara Gon, whose advocacy and writing played a significant role in promoting freedom of expression.
The organisation has now been relaunched under the auspices of the Free Market Foundation, with advocate Mark Oppenheimer serving as its executive director.
According to the advocacy group, digital speech, social media disputes, online censorship as well as offline forms of expression are set to become key battlegrounds for the local organisation, which seeks to defend lawful expression.
In a written interview, Oppenheimer, who is also FMF’s Rule of Law project member, tells ITWeb that freedom of expression remains a cornerstone of democratic societies.
As social media platforms increasingly shape public debate and online comments continue to land South Africans in legal and professional trouble, the organisation says it aims to ensure lawful speech remains protected, he notes.
“The Free Speech Union of South Africa exists to defend lawful speech − including speech expressed online. Free speech is not merely one right among many. It is the foundation of any open democracy. Without free speech, we cannot discover what is true, test ideas, hold the powerful to account, or participate meaningfully as informed citizens,” states Oppenheimer.
The relaunch comes at a time when debates around content moderation, online censorship, misinformation and hate speech have become increasingly prominent globally.
Social media platforms have emerged as powerful gatekeepers of public discourse, while employers, institutions and individuals are increasingly scrutinising online comments.
According to Oppenheimer, a central part of the union’s strategy will be defending lawful speech expressed through digital channels, including social media platforms.
The organisation intends to use educational content, public advocacy and legal intervention to help South Africans better understand their constitutional rights to freedom of expression.
“In the months ahead, the union will publish articles and podcasts explaining why free speech matters, why it is so often misunderstood, and why it must be protected even when it is unpopular.
“The union will also seek to intervene, where appropriate, as a friend of the court in cases involving freedom of expression, and may assist individuals who are unlawfully targeted for speech that is protected by law,” he adds.
The organisation says it will champion freedom of expression across public life, universities, workplaces, civil society and the courts.
Where funding permits, it may also support individuals involved in litigation relating to protected speech.
Oppenheimer argues that constitutional protections extend beyond speech that is broadly accepted or popular.
“South African law does not protect only polite, popular, or comfortable speech. It also protects speech that may offend, shock, or disturb. That protection is essential because free expression is one of the main ways in which societies test ideas and discover truth.”
Drawing the line
The FSU SA says the key to its existence is ensuring lawful expression remains protected, while maintaining appropriate limits where speech crosses into illegality.
While defending robust debate, the union stresses that not all speech enjoys legal protection.
According to Oppenheimer, there is often confusion between offensive speech and genuine hate speech, particularly on social media platforms where comments can spread rapidly and attract significant public attention.
“There is widespread confusion about what genuine hate speech is. The Constitutional Court has made clear that hate speech is not the same as speech that is merely offensive, hurtful, or upsetting. Genuine hate speech involves the advocacy of hatred against a protected group, such as a group defined by race, gender, ethnicity, religion, or sexual orientation, and must meet a serious legal threshold involving harm or incitement to cause harm.”
The issue has become increasingly important as courts continue to hear cases involving social media posts, online defamation and reputational damage over comments posted on platforms such as Facebook, X, TikTok and Instagram.
Section 16 of the Constitution guarantees the right to freedom of expression, including the freedom to receive and impart information, ideas and opinions.
However, this right is not absolute. “The Constitution specifically excludes from protection propaganda for war, incitement of imminent violence, and advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm,” it says.
Legal experts have repeatedly warned that while free speech is constitutionally protected, it does not provide immunity from defamation, unlawful hate speech, incitement to violence or other prohibited conduct.
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