Regulating hate speech and freedom of expression on the Internet: Promoting tolerance and diversity

• Jurisdiction: South Africa
• Date: 24 May 2019
• Citation: (2015) 28 SACJ 303
• Pages: 303-336
• Published date: 24 May 2019
• Author: F Cassim

Regulating hate speech and

freedom of expression on the

Internet: Promoting tolerance and

diversity

1F CASSIM*

ABSTRACT

The development of new accessible technologies and the expan sion of the

Internet have changed the in formational and commun icational realities

across the globe. The Inter net has become a vital and acces sible forum

for free speech and a marketplace for the exchange of ideas. O nline users

rely on the safety, security and a nonymity of the Inter net and social media

in their daily l ives. However, the Internet has a potential for misuse a nd

abuse. Hate speech involves the use of abusive, racist and d isparaging

comments, words or phrase s directed again st particula r groups of people.

The anonymity of the I nternet has facilitate d the disseminat ion of hate

speech with such speech becom ing more prevalent. Online h ate speech

has a signicant impac t on the lives of the people it seeks to denig rate.

This art icle examines the tension bet ween hate speech and freedom of

expression on the Internet. T his study reveals th at online hate speech has

become rife, and many countr ies have introduced laws placing restr ictions

on freedom of expression in order to cu rb online hate speech. It is submitted

that limits on fr eedom of expression can affect t he free exchange of ideas

and information, and ero de condence in the network tech nologies that

are used. It is recommended t hat appropriate mechanisms shou ld be put

in place to preserve the use of the I nternet as a marketing, commun ication

and educational tool, and at the same t ime teach online user s to embrace

‘pluralism, tolerance and broadm indedness’. A collaborative effort by al l

stake holders (such as governments, non-government al organisations,

Internet Service Pr oviders, international org anisations) is also necessar y to

curb hate speech on the Inter net and to promote tolerance and respect for

diversity. The Internet should be preser ved as an accessible forum for free

speech and the exercise of freedom of expr ession should be exercised in a

responsible manner.

*BA (Law) (University Durban-Westv ille) LLB (University o f Natal – Durban) LL M

LLD (University of S outh Africa), Associate Professor in t he Department of Crimi nal

and Procedural L aw, University of South Afr ica (UNISA), admit ted attorney and

conveyancer of the High Cour t of South Africa.

303

(2015) 28 SACJ 303

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1 Introduction

The Internet has revolutionised inform ation and communication

realities worldwide, introduced an accessible market for the sale of

products and the exchange of ideas and introduced new platforms

for social interaction, such as Twitter and Facebook.1 However, the

development of new accessible technologies and the expansion of the

Internet have created new opportunities for cri minal and extrem ist

activities. 2 The rise of the Internet has re sulted in the dissemin ation

of hate speech and cyber hate-related activities becom ing widespread,

with an increase in the numbe r of websites offering racist content and

hate speech being reported recently.3 The publication of such materials

has aroused much public concern from international bod ies.4 There

has also been a reported incre ase in the number of South Africans who

make racist comments on social net working sites such as Twitter and

1 See D Moeckli, S Sha h, S Sivakumara n and D Harris (ed) International Human

Rights 2ed (2014) 431-432; T McGonagle ‘M inorities and onl ine ‘hate speech’: A

parsing of selected complex ities’ (2010) 9 Euro’n Yearbk Minority Issue s 419 at 431-

432; YA Timofeeva ‘Hate speech onl ine: restricte d or protected? Compar ison of

regulations in t he United States and Ge rmany’ (2002-20 03) 12 J Transnat’l Law &

Pol’y 253 at 255; EM Chen ‘Global Internet freedom: Ca n censorship and free dom

co-exist ?’ (2003) 13 DePaul J Art & Ent Law 229 at 2 37-238; B Perry and P Olsson

‘Cyberhate: The globa lisation of hate’ (200 9) 18 Info & Comms Technology L 185 at

187; A Tsesis ‘Hate in cyberspace: Regul ating hate speech on the Internet’ (2001) 38

San Diego L R 817 at 818 and R Delgado and J Stefancic ‘Hate speec h in cyberspace’

(2014 ) 49 Wake Forest L R 319 at 323-324 .

2 New technologies have also si mplied the task of c rimina ls to commit exist ing

crimes (such as inter ali a, hate speech) which can be gene rated and spread by a

computer in a matter of se conds to million s of computer users around t he globe.

See MS Nuth ‘Taking advan tage of new technologies: For and aga inst crime’ (2008)

24 Comp Law & Sec Re v 437 at 437-438. It should be emph asised at the outset t hat

hate speech would incor porate racist speech . See furthe r, the denition of onl ine

hate speech in sect ion 2 below.

3 M Gercke Understan ding Cybercrime: A Guide for Deve loping Countries 2ed (2011)

68. Also see DP van de r Merwe et al Information and Communications Technology

Law (2008) 444- 445; D Thomas and BD Loader (eds) Cybercrime: La w Enforcement,

Security and Sur veillance in the Informati on Age (2000) 243, 246, 249; De lgado

and Stefancic op cit (n1) 324-325; JS Henry ‘B eyond free speech: novel approaches

to hate on the Internet i n the United States’ (20 09) 18 Info & Comms Technology L

235 at 235; R Cohen-Almagor ‘Cou ntering hate on the Internet – A rejoinder ’ (2010)

2 Amsterdam Law Fo rum 125 at 127; McGonagle op cit (n1) 419-44 0; Timofeeva op

cit (n1) 256. It is noteworthy that there was a su rge in online hate speech in Kenya

ahead of the contested Ma rch 2013 elections. Th is demonstrates t he use of the

Internet as a platfor m to fuel hostilit ies. See ‘Internet: On line hate speech s urged

ahead of elections’ 17 April 2 013, available at http://legalbrief.co.za/story/online-

hate-speech-surged-ahead-of-elections-report/, accessed on 17 April 2013.

4 Thomas and Loade r op cit (n3) 13.

304 SACJ . (2015) 3

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Facebook.5 Thus, there has been an increase in racist and hate attack s

on the Internet where the anonymity, accessibilit y and immed iate

publication of digital technology make it easier for individuals to

target their victim s.6 Publication of material on the Internet also of fers

many advantages to the offender such as lower distribution costs, non-

specialist equipment and a global audience.7 The Internet provide s

every user with the potential to become a publisher.8 The I nternet

provides a source of ‘harmful’ i nformation that is dif cult to regulate

due to the anonymity of cyberspace.9 The global reach of social

media also compounds the problem of seeking adequate redress for

victims.10 T he lack of direct governance by an international bo dy to

curb illegal content and activity on t he Internet has also compounded

the problem of regulation.11 This has led to the perception of the

Internet as a platform that requires a delicate ba lance, with companies

and governments requiring suf cient freedom to leverage its power

for their respective goals while consumers and on line users expect

the protection of their legitimate privac y rights.12 The dissemination

of hate speech on social media can also have serious repe rcussions for

5 S Naik ‘Jail risk wit h racist comment s on Twitter’ Saturday Star, 31 March 2012 at

9; See ‘Internet: On line hate speech’ op cit (n3). Also se e ‘Preacher apologises for

racial tweet’ avai lable at http://www.elaw@ legalbrief.co.za, accessed o n 11 January

2012, where a self-proclai med preacher made a racia l tweet about kil ling white

people to eradicate raci sm and singled out DA leader Helen Zil le in the tweet.

6 Gercke op cit (n3) 58, 68. Also s ee C Kim et al ‘Computer c rimes’ (2012) 49 Am

Crim L R 485; Henry o p cit (n3) 251; Thomas and Loader op cit (n3) 12, 220; Perr y

and Olsson op cit (n1) 196; L Shaw ‘Hate speech in cy berspace: Bittern ess without

boundaries’ (2011) 25 Notre Dame J Law, Ethic s & Pub Pol’y 279 at 280; S Kierkegaard

‘Cybering, onl ine grooming and ageplay’ (2008) 24 Comput er Law & Sec’y Rep 41 at

41; C Wolf ‘Needed: Diagnostic tools to g auge the full effect of online ant i-semitism

and hate’ (2004) 8 J Inter net Lawyer 1; 11 at 12-14.

7 Gercke op cit (n3) 68.

8 Some online user s may regard anonymit y to be essential to t heir creativit y. See

E Burch ‘Censori ng hate speech in cybe rspace: A new debate in a new A merica’

(2001) 3 N Carolina J Law & Technology 175 at 175; R Marsden ‘Daggers of onl ine

anonymity could k ill off all restraint’ Saturday Star, 29 March 2014 at 11.

9 It should be noted that the ter m ‘cyberspace’ refers to a unique med ium or space that

has no specic geogr aphical location but it ca n be available to anyone, anywher e

in the world who has access to the I nternet (as dened in Reno v ACLU 521 US 844,

851 (1997)). Also see Kim et al o p cit (n6) 485-486.

10 It is problematic if the v ictim and the of fender live in differe nt locations or

jurisdict ions but meet via the Inter net. The anonymit y and potential p ermanency

of the online envi ronment can contr ibute to an exacerbation of t he emotional or

psychological harm i nicted on vic tims of hate speec h. See McGonagle op cit (n1)

433-434.

11 Kierkegaard op cit (n6) 41.

12 J Nguyen ‘Internet pri vacy class actions: How to m anage risks from i ncreasing

attacks again st online and social media’ (2011) 28 Computer & Intern et Lawyer 8 at

11.

Regulating hate speech and freedom of expression on

the Internet: Promoting tolerance and diversity 305

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