Policing Online Publishing: What is SA’s legal stance on governing hate speech across digital and social media?

“If you wouldn’t want your opinion splashed across the front page of the Sunday Times, then you shouldn’t post or tweet it online” – if the South African public could take just one social media Golden Rule to heart, this would be it.

There’s no denying that the chasm between the digital reality of everyday life and the practical ability of the law to regulate it is widening at an accelerating rate. Laws develop at snail’s pace. But until the centuries-old jurisprudence which underlies the legal systems of western society is fundamentally revolutionised, the law will continue to apply to each and every one of us in the digital environment.

In South Africa, the supremacy of the law over social media was made unequivocal in the recent South Gauteng High Court decision of H v W[A1] , in which Willis J relied upon inter alia the Constitutional rights of the litigants, well-established common law principles and judicial precedent (ordinarily applied to date in the context of the traditional print, TV and radio forms of publication) to determine that comments which W had posted on Facebook in respect of H were defamatory.  W was ordered to remove the offending comments.

In terms of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, no-one may publish or communicate words based on prohibited grounds (including race, gender, religion, culture or sexual orientation) against a person that might be construed as demonstrating an intention to hurt, incite harm or promote hatred. The act further prohibits “harassment”, which includes “unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment” based on any prohibited ground.

Although it remains to be seen, it is entirely logical that the approach of the court in H v W will be extended to hate speech, harassment and other forms of unjustifiably offensive or abusive publication.

The law is not bothered that publication online may be many times easier than it is in the real world – in the eyes of the law, a casual re-tweet or shared post is just as much likely to be considered an act of “publication” as is the printing of a newspaper. And the rules relating to defamation, hate speech and harassment will apply.

Channel “neutrality” or “agnosticism” are terms often thrown around by digital pundits when discussing the ubiquitous convergence of communication media. What they – and everyone else – must realise is that just as digital convergence may be an inevitability, so too is the applicability of the law. If something is illegal in the traditional world, it will in most cases be illegal in the digital world.