Abstract

Keywords

Hate speech; Equality Act; unfair discrimination and hate speech regulation; hurt and harm; bona fide engagement in protected expression; incitement; freedom of expression; dignity; equality.

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1 Introduction

Hate speech remains an important and contentious issue in South Africa and elsewhere. It is important because hate speech directly implicates the foundational values of the Constitution of the Republic of South Africa, 1996 (the Constitution). It is contentious because the regulation of hate speech has to reconcile deep tensions in relation to human dignity in the sense of autonomy and as a right to be respected by others, in relation to freedom of expression as a contributor to the realisation of equality and also as potentially instrumental to its violation, and in relation to freedom of expression as both an essential ingredient of, as well as a potential threat to deliberative democracy. Hate speech regulation therefore requires a constitutional framework conducive to a cautious and proportional evaluation of the worth of the censured expression and the importance of the aims of its prohibition.

This contribution is a reply to a response by Botha and Govindjee1 to an article in which we sought to place the hate speech provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) in such a constitutional framework.2 There are fundamental differences in our respective approaches to the interpretation and constitutionality of the prohibition of hate speech in section 10(1) of the Equality Act. The main points of difference concern the relationship between the prohibition of unfair discrimination and the regulation of hate speech, the constitutionality of section 10(1) and the proviso of section 12, as well as Botha and Govindjee's proposals for the reform of section 10(1).

Botha and Govindjee do not view section 10(1) as primarily prohibiting a form of unfair discrimination. They submit that compared with section 16(2)(c) of the Constitution, the hate speech prohibition is vague, imprecise and over-reaching. In their view section 10(1) "creates a measure which is neither a reasonable and justifiable limitation to the freedom of expression (as tested in terms of section 36 of the Constitution), nor a clear, necessary

or proportional restriction thereto".3 They propose an amendment that would substantially narrow the scope of section 10(1).4 We, on the other hand, consider the constitutional right to equality and non-discrimination as the primary context for interpreting the Equality Act's hate speech provisions. This approach, in our view, provides a more coherent interpretive basis to address the constitutional concerns raised by Botha and Govindjee.

In this reply we test our views and arguments against those presented by the authors. We maintain the correctness of our approach as set out in our original article, which we will briefly reiterate here. In line with this approach, we argue that narrowing down the section 10(1) prohibition as proposed by the authors would unduly negate legitimate and compelling aims of the Constitution, the Equality Act and international law.5

2 The link between unfair discrimination and hate speech

Section 10(1) of the Equality Act reads as follows:

(1) Subject to the proviso in section 12 , no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to -

(a) be hurtful;

(b) be harmful or to incite harm;

(c) promote or propagate hatred.

The proviso in section 12 stipulates:

Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.

Botha and Govindjee disagree with our contention that the above-mentioned hate speech provisions of the Equality Act should be seen as prohibiting a species of unfair discrimination.6 We argued that section 10 of the Act, as an integral part of a legislative instrument explicitly intended to realise the constitutional right to equality, should primarily be interpreted in the latter context, and not section 16 of the Constitution. We justified this

interpretive framework for section 10, in brief, by referring to the Act's primary aim, stated in its preamble, to give effect to section 9 of the Constitution, which requires the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality. The preamble also commits to the facilitation of the transition to a democratic society, "united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom".7 The value of ubuntu, which has become an integral part of our constitutional values and principles, should be added.8

The Equality Court recently stated that

… the constitutional prohibition on hate speech has in fact been given practical legislative effect by the Equality Act. This Act was enacted following s 9(4) of the Constitution which provides, as stated before, that national legislation must be enacted in order to prevent or prohibit unfair discrimination. As such, the hate speech, contended for by the Commission here, falls squarely into the category of conduct that perpetuates systemic patterns of discrimination, and as a direct consequence, the Equality Act aims at prohibiting such conduct.9

In the Court's view it is equally clear from both section 9 of the Constitution and the relevant provisions of the Equality Act that "all persons should not only (not) be unfairly discriminated against, but should also be provided with

protection against utterances which have a severe impact on the psychological well-being of vulnerable minorities in our society".10 The prohibition of expression aimed at hurting and harming others related to their group characteristics unmistakably reflects the undertaking in the preamble, and also empowers those who are targeted with an instrument of protection.11

Botha and Govindjee agree that the Act's express intention to overcome unfair discrimination and to promote a more egalitarian society is an important contextual setting for interpreting the prohibited speech provisions of the Act. They also admit to a "causal link" between hate speech and unfair discrimination".12 They nevertheless insist that hate speech and unfair discrimination "must be treated as separate legal concepts"13 and advance the following doctrinal, textual, and comparative arguments in support of their viewpoint.

Firstly, Botha and Govindjee argue that the test for unfair discrimination in section 6 of the Act differs substantially from the section 10(1) requirements for hate speech.14 They mention two considerations in this respect: whereas the test for unfair discrimination has to do with the effect of the impugned conduct, and not with the perpetrator's intent, hate speech by definition requires a clear intention to be hurtful, harmful or to incite hatred; in addition, unlike unfair discrimination, the section 10 hate speech definition does not rely on a comparator.15

As to the first point, this can obviously not be a general conceptual proposition that, requiring intent for a particular form of unlawful conduct, excludes such conduct from qualifying as unfair discrimination. In as far as the argument is restricted to the narrower context of the specific textual provisions of the Act (which seems to be the case), it also fails to convince. The fact that the Act does not require intent for a finding of unfair discrimination generally in terms of sections 6 and 14 does not logically imply that it cannot do so for particular species of discrimination. Indeed, the

Act itself in section 12 explicitly prohibits certain types of expression as forms of unfair discrimination, for which "a clear intention to unfairly discriminate" is required. Sections 6 and 14 of the Act merely reflect settled jurisprudence that the intention to discriminate is not a requirement for a finding of unfair discrimination in all instances.16

Moreover, even in a context restricted to applying sections 6 and 14 of the Act, intent can feature as a prominent fairness consideration. This will be most evident when the relevance of the purpose of the discriminatory conduct is considered.17 This is one of the pertinent fairness indicators also mentioned in section 14 of the Act.18 The importance of the purpose (and by implication of the intent) as a contextual fairness consideration was already appreciated in Harksen v Lane.19 The court held that if a discriminatory measure whose primary aim is the achievement of a worthy and important societal goal impinges upon the dignity of the complainants, or affects them in a comparably serious manner, the fact that this is not its intended result may have a significant bearing on the fairness enquiry. Conversely, a clearly discriminatory intent could therefore in particular circumstances decisively tilt the scales in the opposite direction. If discriminatory intent is a relevant – and sometimes even decisive – unfair discrimination consideration, then there is no clear conceptual or doctrinal dichotomy between the hate speech and unfair discrimination provisions of the Act. There is therefore no reason why the Act should not treat hate speech as a particular species of discrimination, for which a specific intent is a requirement. This, in principle, would not be different from other particular instances of discrimination where intent could be a conclusive factor for a finding of unfairness. There are also obvious instrumental reasons for requiring the demonstration of a clear and specific intent for hate speech discrimination: it attests to the particularly egregious nature of this

form of discrimination, and it is in addition a necessary element to prevent disproportionate invasions of the freedom of speech.20

Furthermore, the section 10(1) prohibition is in fact concerned with impact and effect. The object of the prohibition is to protect target groups from the direct and ensuing hurtful and harmful impact and effects of exposure to the malicious communication of disrespect, scorn, or hatred related to group characteristics.21 These issues will be addressed in more detail later, in particular in the discussion of the harms associated with unfair discrimination and hate speech22 and the bona fide engagement in expression described in terms of the proviso.23

The further argument that hate speech fits awkwardly within the definitional template of unfair discrimination, because a finding of hate speech does not hinge on the presence of a comparator group, is also unpersuasive. The comparator requirement in discrimination law obliges proof of the existence of a person or persons similarly situated to the discrimination claimant, except for the latter's protected characteristic, but who did not suffer the same discriminatory treatment. This is the traditional methodology in discrimination cases for proving that the impugned conduct is the reason for (or "based on") one or more of the prohibited grounds.24 In this respect, it is significant that the section 10 definition of hate speech is similarly worded to standard discrimination clauses, including section 9(3) of the Constitution and section 6 of the Equality Act.25 In line with these clauses, it also prohibits conduct "based on one or more of the prohibited grounds". If the authors

are suggesting that the comparator methodology is an indispensable means of proving the causal link between the discriminatory conduct and a prohibited ground, then section 10 would clearly also necessitate a comparator, because it too requires the complainant to establish that the impugned speech is "based on" a prohibited ground.

This elevation of the comparator methodology from a means of establishing the link between discriminatory conduct and a prohibited ground to an essential definitional element of discrimination needs, however, to be questioned. Fredman has pointed out that the comparator requirement is naturally linked to a formal understanding of equality as consistency of treatment.26 This conceptual association has become problematic with the development of "the notion of equality beyond consistency into a substantive concept, based on the fundamental values of dignity and respect for the individual".27 Whereas the comparator demand could arguably be seen as a necessary benchmark of equality as consistency, it lacks the same diagnostic status in relation to understandings of equality underpinned by dignity. In an earlier judgment, the Canadian Supreme Court stated that the purpose of the equality right is to "prevent the violation of human dignity and freedom through the imposition of limitations, disadvantages or burdens, through stereotypical application of presumed group characteristics".28 This, and not whether others are treated similarly or not, is the deciding factor for equality so understood. Equality as dignity can be violated even if groups are treated equally badly.29 Harassment jurisprudence has also long demonstrated that proof of a better-treated comparator is not a sine qua non for identifying harassment as a form of dignity-violating unfair discrimination.30 Moreover, unfair discrimination can

take place in contexts where comparators are difficult to identify, or are even completely absent, such as workplace settings with an insufficient number of comparable co-workers,31 or homogenous workplaces or job categories, or workplaces with uniquely situated employees, with no easily identifiable similarly situated co-workers, etc.32 Goldberg has also questioned the functionality in today's economy of the use of comparators as the sole heuristic marker of employment discrimination on a protected ground.33 In a modern, mobile, knowledge-based economy, easily comparable jobs and therefore comparators have become more difficult to identify.34 Straightforward comparison becomes problematic in the absence of workplace settings where multiple workers engage in fixed and easily comparable, standardised tasks.35 To the extent that contemporary jobs have become more flexible and dynamic in nature, the insistence on comparators does not sit comfortably with the modern world of work.36

The comparator requirement also struggles to come to grips with more subtle and complex forms of discrimination which go beyond easily identifiable and overt forms of exclusion based on relatively "thin" (i.e. one-dimensional) conceptions of protected identities.37 In employment discrimination theory, these forms of exclusion are sometimes referred to as "second-generation" discrimination cases.38 They do not result from overt or blatant forms of prejudice, but from the organisational and cultural dimensions of bias manifested in "patterns of interaction, informal norms, networking, mentoring, and evaluation".39

Contemporary discrimination theories, such as intersectionality theory,40 identity performance theory41 and structural discrimination theory42 have attempted to illuminate second-generation discrimination and to highlight the inadequacy of traditional jurisprudential tools (including the demand for

a comparator) to come to grips with it. Intersectionality theory43 addresses how disadvantage is compounded by a combination of traits, such as race plus gender, which is not fully accounted for in legal methodologies that treat the protected identities in isolation. As Goldberg explains, the comparator requirement may struggle to bring forms of discrimination based on multidimensional identities onto its radar. The appropriate comparator may be difficult to identify ("Is it someone who shares neither of the individual's traits or shares one but not the other?").44 In addition, the fact that intersectional claimants are often small in number tends to undermine the evidentiary value of group-based comparisons.45 Identity performance theory is concerned with discrimination that results from people’s expressing ("performing") identity attributes in terms of styles of socialising, grooming, expression, etc.46 In workplace settings, identity styles are not always attributable to distinct categories such as race or gender in a monolithic sense, which also complicates the usefulness of the standard comparator methodology to expose this kind of discrimination.47 The aim of structural discrimination theory is to uncover discriminatory bias behind established workplace norms, structures and interactions.48 Also in this respect, Goldberg argues that comparators are unlikely to shed light on the identity traits that motivate the exclusionary interaction patterns in all but the most blatant situations.49

What these examples illustrate is that a comparator, on its own, is not necessarily determinative of the group-based discriminatory nature of the perpetrator's conduct.50 Insisting, nevertheless, on proof that the perpetrator did not or would not have subjected other groups to the same discriminatory treatment would at best merely reinforce in an indirect way what had already been established directly, namely dignity-related, identity-based harm. It is for this reason, and not because hate speech is conceptually distinct from unfair discrimination, that section 10 does not require the comparator analysis.

2.2 Section 15 of the Act

Secondly, Botha and Govindjee51 state that the Act itself distinguishes between hate speech and discrimination because section 15 does not require fairness testing for hate speech. In our view this distinction does not imply that the expression described in section 10(1) is not a form of unfair discrimination. On the contrary, not requiring fairness testing in terms of section 14 of the Act merely acknowledges the fact that unfairness is intrinsic to the definitional terms of the categorical prohibition of hate speech in terms of section 10(1).52

In addition, section 15 similarly excludes harassment from fairness testing, even though harassment is generally considered to be a form of unfair discrimination.53 Section 6(3) of the Employment Equity Act expressly states that harassment of an employee constitutes a form of unfair discrimination. In Liberty Group Limited v M54 the Labour Appeal Court stated that

… (i)n treating harassment as a form of unfair discrimination in s 6(3), the EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employee's rights, violating that person's dignity and limiting their right to equality at work.55

2.3 Different harms associated with unfair discrimination and hate speech

Thirdly, Botha and Govindjee56 claim that a discriminatory "act or omission which unfairly imposes a burden or withholds a benefit57 on a prohibited ground is not comparable to speech that propagates hatred on a prohibited ground". They appear to believe that this is self-evident, since they offer no further elaboration. It is unclear why the harms associated with unfair discrimination and hate speech are incomparable.58 Hate speech plainly

implies the social burden of exposing a group to public denigration, vilification, insult, marginalisation and threat. Being collectively branded by hateful stereotypes is also the converse of enjoying the benefit of group membership and social repute unburdened by a public discourse infected by group-directed animosity. The harms usually ascribed to hate speech are clearly generically exemplary of typical discriminatory harms.

Botha and Govindjee in effect concede the similarity of the harms associated with hate speech and unfair discrimination generally where they discuss the "causal link" between the two.59 They state that "hate speech has the tendency to promote or perpetuate unfair discrimination, particularly when directed at vulnerable groups in society"; hate speech "seeks to delegitimise the members of target groups and has the tendency to create a climate in which the marginalisation and stereotyping of vulnerable groups is encouraged"; and that the regulation of hate speech and unfair discrimination "have a common objective, namely the protection of human dignity and equality and the eradication of systemic discrimination". If hate speech causes all the harmful things that are recorded here (group-based delegitimisation, marginalisation, stereotyping), and its prohibition aims at protecting human dignity, equality and the eradication of systemic discrimination, then it really is all about unfair discrimination.60

2.4 International law

Fourthly, Botha and Govindjee contend that their approach is vindicated by international law, in particular the International Convention on Civil and Political Rights (1966) (the "ICCPR") and the International Covenant on the Elimination of all Forms of Racial Discrimination (1965) (the "ICERD"), "where it is accepted that the phenomena of discrimination and hate speech are distinguishable".61 In support of this view, they refer to the fact that unfair discrimination and hate speech are dealt with in separate provisions in both of these instruments. Article 20(2) of the ICCPR obliges States parties to prohibit hate speech as defined by it, and article 26 entitles everyone to equality.62 They argue that the advocacy of hatred which incites to

discrimination in terms of article 20(2) is not concerned with "differentiation alone", and that there is a distinction between the obligation to regulate speech that incites to discriminate and the prevention of acts of discrimination.63 They premise their distinction between hate speech and discrimination on the definition of discrimination in terms of the ICERD, as adopted by the UN Human Rights Committee (UNHRC) for the purposes of the ICCPR, namely:

… any distinction, exclusion, restriction or preference which is based on any ground … and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of rights and freedoms.64

As far as the ICERD is concerned, Botha and Govindjee note that article 4(a) requires States parties to take positive steps to criminalise the dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination and incitement to acts of violence against a target group, while article 5 requires the elimination of all forms of racial discrimination.65 They conclude that this signifies that the purpose of the ICERD is to safeguard vulnerable groups from instances of discrimination and hate speech.66 The authors do not elaborate much on the criteria they identify as suggestive of a conceptual difference between discrimination and hate speech. They do not explain what they mean by the phrase "differentiation alone".67 This notion, as purportedly characteristic of discrimination, can obviously not be understood literally, since that would contradict the established principle that discrimination, as a legal concept, always entails more than mere differentiation.68 We presume that what they have in mind here is that hate speech has distinct characteristics setting it

apart from discrimination generally (as the latter is typically defined in the ICERD). The special characteristics mainly concern the elements of advocacy of hatred and incitement to discrimination, hostility or violence. If this is the correct understanding, then it raises the same point we have dealt with already, namely that a legal instrument may prescribe different requirements for different species of discrimination. In paragraph 2.1 we refuted the argument that the requirement of a particular intent for hate speech necessarily disqualifies it from being classified as a form of discrimination. Equally, in paragraph 2.3 we showed how the harms normally associated with hate speech are generically related to typically unfair discrimination harms. We also noted that harassment is generally recognised as a form of discrimination, despite its distinguishing features.

By arguing for the recognition of hate speech as a particular species of discrimination, we acknowledge that, logically, hate speech must therefore display characteristics setting it apart from other forms of discrimination. These distinguishing characteristics, however, do not place hate speech outside the conceptual realm of identity-based discrimination. In General Recommendation No 35, the Committee on the Elimination of Racial Discrimination (CERD) itself clearly identifies racial hate speech as a form of discrimination by noting how article 4 is integrally linked with other provisions of the ICERD in the elimination of racial discrimination "in all its forms", and also by emphasising the integral connection between articles 4 and 5.69 In General Recommendation 15, the CERD notes that "[w]hen the International Convention on the Elimination of All Forms of Racial Discrimination was being adopted, article 4 was regarded as central to the struggle against racial discrimination".70 Thornberry aptly states that "(i)n the complex aetiology of racial discrimination, the transmission of racist ideas and attitudes through multiple forms and occasions of hate speech plays an indispensable role", and that the elements of hate speech in terms of article 4 of the ICERD can be linked in "a common ethos of preventing racial discrimination".71 In his commentary on the CERD's General Recommendation No 35, Thornberry also fittingly observes that "(t)he title

of ICERD refers to the elimination of 'all forms' of racial discrimination, including speech forms".72

We conclude that in so far as the ICERD and the ICCPR draw a distinction between "the obligation to regulate speech that incites to discriminate and the prevention of acts of discrimination", this does not rise to the level of a conceptual difference as contended by Botha and Govindjee.73

3 The constitutionality of section 10(1)

3.1 The constitutional framework

Both sections 16(2)(c) of the Constitution and 10(1) of the Equality Act are concerned with harmful expression related to group characteristics and can be described as hate speech provisions on this basis. The provisions should, however, be distinguished as far as their scope and aims are concerned. Section 16(2) of the Constitution places extreme anti-democratic expression, including hate speech in terms of section 16(2)(c), outside the ambit of constitutional protection.74 This categorical exclusion calls for robust legislative and other measures, including criminalisation, to combat the serious threat of the incitement that it describes. Section 16(2)(c) narrowly defines hate speech as "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm". On the other hand, section 10(1) of the Equality Act is primarily concerned with the regulation of hurtful and harmful expression related to group characteristics in a much broader sphere that exceeds the ambit of unprotected expression under section 16(2)(c) of the Constitution to also involve prima facie protected expression. The broader scope of section 10(1) is related to the primary transformative aim of the Act, in particular the obligation in terms of section 9(3) and (4) of the Constitution to prohibit and prevent unfair discrimination. We therefore expressed the view that these

sections provide "the more directly applicable context within which to interpret section 10".75

Botha and Govindjee, however, maintain that the constitutionality of section 10(1) should not be tested with reference to the fairness standard for discrimination. They contend that

… a preferable approach is that the determination whether the limitation to freedom of expression in section 10(1) appropriately balances the rights to freedom of expression, human dignity and equality, and is a necessary, rational and proportionate measure, should be left to section 36 of the Constitution.76

There appears to be some misunderstanding here. Our view that the hate speech provisions of the Equality Act are primarily intended to give effect to section 9 of the Constitution does not mean that section 9 is the only applicable standard for measuring the Act's constitutionality, or that equality interests would be dogmatically privileged where competing interests or rights are at play.77 Whenever the Act is challenged on the basis of a possible infringement of any competing right, then the right to equality and non-discrimination will feature as an important but relative factor in the context of a proportionality analysis. If for instance the constitutionality of section 10(1) of the Act is contested in terms of section 16 as an unjustifiable restriction on freedom of expression, the fact that the Act is intended to realise the foundational value and right to equality and non-discrimination will be an important consideration in the context of applying section 36 of the Constitution. We did not suggest that the equality consideration should replace or necessarily dominate the section 36 proportionality inquiry in a situation-insensitive manner. We do not maintain, as suggested by Botha and Govindjee, that equality should be disproportionally favoured at the expense of freedom of expression.78 We acknowledge that not all discriminatory speech rises to the level of the kind of discriminatory hate speech that would justify the most stringent forms of suppression. We are mindful of Ghanea's caution that in order to ensure that freedom of speech is not unnecessarily restricted in terms of hate speech proscriptions, "states must show that the harm of discrimination cannot be ameliorated by means other than the suppression of protected speech".79

Our viewpoint does, however, ensure that the appropriate balance between the rights to freedom of expression and equality is achieved in accordance with the value structure of our Constitution, in which the promotion of equality occupies a central place.80 Our approach could therefore shape the proportionality inquiry's outcome in a way different from what would have been the case if the hate speech provisions of the Act were primarily intended to give effect to section 16(2)(c) of the Constitution. The fact that these provisions are meant to realise the right to and foundational value of equality will, for instance, add considerable weight to the importance of the purpose of the limitation (section 36(1)(b) of the Constitution). It may be important enough to outweigh the fact that section 10(1) of the Act is not a mirror image of section 16(2)(c) of the Constitution.81 We expand on this in the following sections.

3.2 Vagueness and overreach

Botha and Govindjee believe that section 10(1) of the Act is on constitutionally thin ice, due to both vagueness and overreach.82 Their primary concerns are that section 10(1) lacks a rational connection to its purpose and that it disproportionally favours the interests it seeks to protect.83 The chief reason for these defects is that section 10(1) can proscribe hurtful inter-personal speech84 that does not require consequential harm and is not specifically group-related, ie resulting in individual as opposed to societal harm.85 The textual context for this perceived flaw is that section 10(1) prohibits speech "based on one or more

of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful or harmful".86 In their view, this implies a misguided emphasis on speech intended "to be hurtful when communicated about any person, as opposed to that which vilifies and ostracises the group". They argue that the purpose of hate speech regulation should not be to safeguard the "emotional well-being of individuals", but to prohibit expression that "reinforces and perpetuates patterns of discrimination and inequality" and which undermines national unity, tolerance and reconciliation in society".87

Regarding the first point of concern, Botha and Govindjee claim that the inclusion of hurtful inter-personal speech without a link to resultant harm is not rationally related to the "legislative purpose of addressing the marginalisation and systemic discrimination of groups".88 In our view, this line of reasoning is premised on a narrow understanding of the direct and indirect group-related harm inflicted through hurtful speech.89 In this respect, Benesch states that hate speech

… directly affects its targets – the people it purports to describe – by frightening, offending, humiliating or denigrating them. This often has the secondary effect of silencing them, by means of fear. Speech can also harm indirectly (but no less severely) by inciting, or pitting members of one group of people against another.90

Gelber refers to

… a considerable body of literature that has developed over the last few decades, which discusses how hate speech is expression that materially and substantively harms its targets in the saying of that speech (and not only in terms of a discreet, consequential harm arising from it).91

According to this literature, the defining features of hate speech are

… that it incurs harms discursively when the hate speech is uttered, and that these harms are analogous to other discriminatory harms, such as denying someone a service or denying them a job on the ground of their race or other relevant attribute.92

The discriminatory effects of hate speech include

… that others were persuaded of negative stereotypes, a conditioning of the environment such that racism was normalized, subordination, silencing, fear, victimization, emotional symptoms, restrictions on freedom, lowering of self-esteem, maintenance of social imbalances of power, and undermining of their dignity.93

Secondly, Botha and Govindjee also draw too stark a line between individually hurtful or harmful speech and speech that "vilifies and ostracises the group". Section 10(1) does not cover hurtful or harmful speech directed at an individual based solely on his or her "uniquely personal characteristics".94 Since it requires speech to be based on one or more of the prohibited grounds, only speech aimed at imputed group characteristics is included in the definition of hate speech. Hate speech remains a group-directed attack, even when communicated "against any person". By definition, hate speech does not target the individual in purely individual terms, but as representative of the negative characteristics ascribed to the group. The hurt or harm against which section 10(1) protects does therefore not include the "emotional well-being of individuals" unconnected to their group association. Section 10(1) acknowledges that to the extent that groups are "part of the psychological self",95 no stark boundaries distinguish group- and individual-directed hate speech. Stereotypical comments about groups can elicit as strong and intense emotional responses as identical personal comments.96 The section 10(1) prohibition of hate speech against an individual is therefore clearly also rationally related to the purpose of proscribing speech that "reinforces and perpetuates patterns of discrimination and inequality", and which "undermines national unity, tolerance and reconciliation in society".

Botha and Govindjee also raise the concern that the inclusion of the word "communicate" in section 10(1) adds a concept so wide that it opens the door to the regulation of a broad range of private speech, "even where the speaker does not intend to advocate hatred or incite harm and even if a member of the target group does not hear the speech".97 They propose the insertion of a "publicity" element in section 10(1), "namely that the speech

should occur in the hearing or presence of the public in a public place, or that it should be published or disseminated to the public".98

We agree that the section 10(1) hate speech prohibition should not apply to conversation in private.99 We argued that section 10 does not clearly exclude private communication, probably owing to bad formulation in particular of the phrase "no person may publish, propagate, advocate or communicate words". Words can be published and used to advocate, propagate and communicate ideas, feelings, opinions and knowledge, but cannot be advocated or propagated themselves. We accordingly proposed that the phrase "no person may publish, propagate, advocate or communicate words" should read, or be amended to read, "no person may publish expressive content100 that propagates, advocates or communicates ideas or views".101 This formulation will clearly exclude private conversation from the ambit of section 10(1) and will also address the textual anomaly.102

We will now further explain our view that section 10(1), subject to the amendment (or interpretation) that we have proposed, despite the broadness of some of its terms, does not unduly infringe upon the right to freedom of expression. This necessitates a closer look at the proviso in section 12 of the Equality Act, since it is primarily intended to further clarify and limit the scope of prohibited hate speech in section 10(1). Many of our differences with Botha and Govindjee regarding the Equality Act's purported vagueness and over-breadth can be attributed to differing interpretations of the role and terms of the proviso.

3.3 The role and interpretation of the proviso in section 12 of the Equality Act

3.3.1 The function of the proviso103 in the context of section 10 of the Act

Botha and Govindjee submit that

… the proviso's role is to create a defence for a respondent, who will need to prove that the speech falls within its ambit and should thus be precluded from prohibition (even though it meets the respective section 10 and 12 threshold tests).

We do not agree. In our view when expression falls within the ambit of the proviso, it is a clear indication that it essentially does not meet the section 10(1) requirements. To use the phrasing of the Constitutional Court in Islamic Unity Convention v Independent Broadcasting Authority,104 albeit in a different context, the proviso "defines the boundaries beyond which" the section 10(1) prohibition "does not extend". It describes expression with characteristics that essentially fall outside the section 10 definition of hate speech.105 We described the proviso as a "modifier" in the sense of "a word or phrase that makes specific the meaning of another word or phrase".106 The Supreme Court of Canada illustrates our point in the Whatcott case.107 The issue was the constitutionality of a hate speech provision of the Saskatchewan Human Rights Code108 that resembles section 10(1) of the Equality Act, albeit without a provision similar to the section 12 proviso. The Court nonetheless considered that "in the normal course of events, expression that targets a protected group in the context of satire, or news reports about hate speech perpetrated by someone else, would not likely constitute hate speech".109 In our view, the section 12 proviso simply excludes these and other forms of expression explicitly from the prohibition.

The perception that hate speech that complies with the essential terms of section 10(1) is potentially justifiable is inaccurate and confusing. It should be clearly understood that even visual art, poetry, newspaper articles and scientific and academic publications may constitute or contain hate speech as contemplated by section 10(1) of the Equality Act. In the Saskatchewan case it was argued that the absence of defences of truth and sincerely held belief rendered the provision overbroad. The Court held that

… in not providing for a defence of truth, the legislature has said that even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.110

The same reasoning applies to the forms of expression listed in the section 12 proviso of the Equality Act.

Botha and Govindjee's main criticism of our approach that the proviso does not provide defences to justify hate speech is that it increases the burden that is placed on a complainant.111 According to them it requires a complainant to prove a negative (that the expression does not fall under the proviso) and denies the respondent the benefit of a defence. This effect, in their view, contradicts the principle that in unfair discrimination cases a complainant is required to make out only a prima facie case of unfair discrimination, as well as the Equality Act's purpose to provide the victims of hate speech and unfair discrimination with accessible forums to pursue complaints.112 We do not agree that our approach affects the burden of proof. The same overall onus of proof on the applicant and the onus of rebuttal on the respondent will apply, regardless of whether the proviso operates as descriptive of the prohibited conduct or as a complete defence in justification of prohibited conduct.113 The shifting of the burden of proof in an unfair discrimination matter in terms of section 6 of the Act is related to the presumption of fairness that comes into operation once discrimination on a listed round is established.114 As a categorical prohibition not subject to fairness testing in terms of section 14 of the Act, section 10 clearly does not involve a presumption of unfairness.115

3.3.2 "Bona fide engagement"

3.3.2.1 The textual reading

Botha and Govindjee contend that the "bona fide engagement" requirement qualifies the forms of expression enumerated in the proviso with the exception of the "publication of any information, advertisement or notice". They consider this interpretation to be based on grammatical correctness.116 This interpretation entails various problems, as also pointed out by Botha and Govindjee and addressed in our following response.

We interpreted the "bona fide engagement" phrase as qualifying each of the forms of expression enumerated in the proviso. We also linked these forms of expression with the specified freedoms enumerated in terms of section 16(1) of the Constitution, namely the freedom of the press, the freedom to receive information, the freedom of artistic creativity, academic freedom and the freedom of scientific research. We concluded that the proviso essentially covers bona fide engagement in all forms of expression that enjoy constitutional protection in terms of section 16(1) of the Constitution.117 This understanding makes it clear that section 10 is concerned with expression that is not in good faith (malicious).118 We contended that expression will not be in good faith when it abuses the freedoms that are stipulated in terms of section 16(1) of the Constitution, with the aim to hurt and harm or to promote or incite hatred related to group identity as contemplated in terms of section 10(1).119 An academic article on homosexuality referring to homosexual people in degrading terms serves as an example. The primary aim of the abusive remarks will be reasonably perceived to be intended to hurt and harm homosexual people and not to communicate or publish scientific information, regardless of whether the scientific view approves or condemns homosexuality.120

Botha and Govindjee acknowledge that our suggestion that the "bona fide engagement" phrase applies to all the forms of expression enumerated in terms of the proviso "offers a potential solution to the over-breadth problem" that they have identified.121 They do not, however, consider this

interpretation as a viable option as, in their view, "it is strained and not textually sound".122 They argue that if the words "bona fide engagement" are reinserted immediately after the word "or" in the proviso, the proviso would read as follows: "provided that bona fide engagement publication of any information, advertisement or notice …". Their version, however, does not reflect our proposal. We will now clarify our textual reading by using brackets, highlighting the relevant phrase, and underlining the respective listed forms of expression as follows:

Provided that bona fide engagement [in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest123 or publication of any information, advertisement or notice] in accordance with section 16 of the Constitution, is not precluded by this section.

We do not agree that this reading is textually strained. On the contrary, as will be corroborated by the further analysis of the terms of the proviso, it fits in effortlessly with an overall logical understanding of all the different aspects of the proviso within the context of section 10 of the Act, and it is compatible with the constitutional imperative to uphold the right to freedom of expression.

3.3.2.2 The meaning of "bona fide"

Botha and Govindjee do not entirely differ from our interpretation of the phrase "bona fide", but find our reference to the "subjective conviction" of the speaker confusing. They submit that it should rather be considered "whether the form of expression in issue, assessed in its entirety and in the light of its context and purpose, can genuinely and legitimately be regarded as the engagement in artistic creativity, scientific enquiry or fair and accurate reporting in the public interest".124 The confusion relates to their sole consideration of the bona fide nature of the forms of expression enumerated in the proviso, and not also the bona fides of the speaker's "engagement". "(B)ona fide engagement" in the proviso is in contrast to the

malicious intention required in terms of section 10(1).125 We will now explain our understanding of this aspect in more detail.

The Collins Thesaurus of the English Language126 provides the following synonyms for "bona fide": "genuine; real; true; legal; actual; legitimate; authentic; honest; veritable; lawful; on the level". The online Cambridge English Dictionary describes "genuine" as follows: "If something is genuine, it is real and exactly what it appears to be… If people or emotions are genuine, they are honest and sincere." We applied these descriptions respectively to determine the bona fides of the speaker and the bona fide nature of the relevant forms of expression.

The proviso is concerned with bona fide, in the sense of honest and sincere, engagement in bona fide, in the sense of authentic, protected forms of expression.127 The proviso makes it clear that when a speaker bona fide (honestly or sincerely) engages in, for instance, artistic creativity, the work of art will not fall under section 10(1) even if it hurts or harms related to group identity. Bona fide engagement in expression is the opposite of the malicious abuse of expression.128 An example of the malicious abuse of a bona fide form of expression will be when an authentic painting depicting the flogging of a slave is placed on the doorstep of a black person who has moved into a white neighbourhood. It is rather obvious that the promotion of hatred will never be bona fide.

The determination of malicious intent by means of a reasonableness assessment addresses Botha and Govindjee's concern that "at this level the focus should be on remedying the harm caused by hate speech, as opposed to the subjective intention of the hatemonger".129 Hate speech regulation is

essentially concerned with the affront to human dignity caused by the exposure to another's contempt of the addressee's group characteristics. Determination of the presence of malicious intention in the form of contempt, scorn or hatred can therefore not be excluded from the analysis.130

3.3.3 "[I]n accordance with section 16(1) of the Constitution"

Botha and Govindjee contend that "the appendage of the phrase 'in accordance with section 16(1) of the Constitution' to the end of the proviso adds little value to the proviso's meaning".131 They understand the phrase to require a case by case analysis to determine whether or not the form or forms of expression to which it applies should have been excluded from the prohibition in the first place.132 However, they concede that to categorically exclude a form of expression from prohibition, and then to require the said case by case analysis, does not make sense. In an attempt to address or minimise this problem, they reason that the phrase "in accordance with section 16(1) of the Constitution" qualifies only the last-mentioned form of expression enumerated in terms of the proviso, namely "publication of any information, advertisement or notice", and that this phrase in turn specifically refers to the prohibition of the publication or display of any advertisement or notice in terms of section 12(b) of the Act. They speculate that "the drafters attempted to reproduce the essence of section 12 of the Act133 and then to exclude such forms of expression from liability if published 'in accordance with section 16 of the Constitution'". They finally reiterate that this interpretation does not solve the problem of distinguishing expression "in accordance with section 16(1) of the Constitution" from expression outside the ambit of the proviso.134

Our understanding of the phrase "in accordance with section 16(1) of the Constitution" is that it simply excludes expression under section 16(2), in particular section 16(2)(c), of the Constitution, which is expression not in accordance with the Constitution,135 from the ambit of the proviso. The exclusion makes perfect sense, because expression that incites harm as

envisaged in terms of section 16(2)(c) of the Constitution can never constitute bona fide engagement in expression that enjoys constitutional protection and should not be treated as if constitutional compliance were a possibility.136

We also have substantial textual problems with Botha and Govindjee's linking of the phrase "in accordance with section 16(1) of the Constitution" to "publication of any information, advertisement or notice" only. The proviso explicitly applies to both sections 10 and 12 and the latter covers not only the publication or display of any advertisement or notice but also the dissemination or broadcast of any information.

In line with our reasoning that the forms of expression listed in the proviso relate to the freedoms in terms of section 16(1) of the Constitution, we contend that in the context of the proviso "the publication of any information, advertisement or notice" gives effect to the "freedom to receive or impart information or ideas".137 Furthermore, considering the broad definitions of the terms "inform" and "information" that we referred to,138 we concluded that the exclusion of bona fide engagement in the "publication of any information, advertisement or notice" from the ambit of section 10(1) narrows it down significantly.

This interpretation also addresses Botha and Govindjee's concern that the media protection afforded in terms of the proviso is too narrow.139 We insisted that not only the proviso's "fair and accurate reporting in the public interest" can be linked with the guarantee of media freedom in section 16(1)(a) of the Constitution, but other listed forms of expression too.140 It can hardly be denied that publication of information, artistic creativity and academic and scientific enquiry occur in the media.

4 The authors' proposal

Botha and Govindjee, in summary, express concern that the communication of hurtful words on a prohibited ground against any person falls within the ambit of section 10 and that the proviso exempts such expression only if it amounts to the bona fide engagement in artistic creativity, academic or scientific enquiry, or the bona fide engagement in fair and accurate reporting in the public interest. They claim that the proviso thus limits the broad effect of sections 10 and 12, but does not "temper the fact that these prohibitions limit the freedom of expression in terms more extensive than section 16(2) of the Constitution". They add that even if they are incorrect in their view that the latter part of the proviso ("the publication of any information, advertisement or notice in accordance with 16 of the Constitution") applies only to section 12 of the Act, the meaning is vague and causes uncertainty to the extent that the limitation to freedom of expression cannot be justified in terms of section 36 of the Constitution.141 They therefore suggest the following amendment to section 10:

No person may publish, propagate, or advocate any form of expression in public against an identifiable group of persons on one or more of the prohibited grounds that could reasonably be construed to demonstrate a clear intention to promote hatred against such group and which is likely to cause harm.142

The phrase "against any person" is removed.143 They also extend the application beyond the four prohibited grounds mentioned in section 16(2)(c) of the Constitution, to include all the prohibited grounds.144 Instead of section 16(2)(c) of the Constitution's restriction to advocacy as the relevant means of communication, the terms "publish, propagate, or advocate" are used. The demonstration of a clear intention to promote hatred is required, as well as a likelihood that harm will follow. Incitement to harm is not required.

Botha and Govindjee contend that a restriction of freedom of expression in these terms is a reasonable and justifiable limitation to the freedom of expression and is rationally connected to the legislative purpose of addressing the marginalisation of vulnerable groups and of promoting a tolerant, pluralistic and egalitarian society. They do not relate their

recommendation as such to any sources and do not conduct a reasoned justification analysis in terms of section 36 of the Constitution.145 However, their proposal contains elements of both sections 319(1) and, in particular, 319(2) of the Canadian Criminal Code146 and invites reference to the judgment in R v Keegstra. Section 319(1) prohibits incitement which is likely to lead to a breach of the peace, and section 309(2) prohibits the wilful promotion of hatred.147 In both instances offenders are liable to imprisonment.148

The Supreme Court of Canada in R v Keegstra found section 319(2) not to be overly broad or vague. The reasoning was that its definitional limits ensure that it will capture only expressive activity which is openly hostile to the objective of preventing pain to the target group and reducing racial, ethnic, and religious tension and, perhaps, violence. The majority stated that Canada's international obligations and Charter sections 15149 and 27150 emphasise the importance of this objective and concluded that the objective was of sufficient importance to warrant overriding a guaranteed right.151

The Court took into account that the word "wilfully" restricts the reach of the section by requiring proof of either an intent to promote hatred or knowledge

of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of the section, must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of the section, the need for the promotion of hatred to focus upon an identifiable group, and the presence of the section 319(3) defences,152 which clarify the scope of section 319(2), all support the view that the impugned section creates a narrowly confined offence.153

It falls outside the scope of our original contribution as well as of this response to formulate a detailed comparative analysis of Botha and Govindjee's proposal and, in particular, section 319(2) of the Canadian Criminal Code. It suffices to point to the resemblance to the proposed recommendation and the outcome of the proportionality analysis performed by the Supreme Court of Canada. Clearly, considering the reasoning of the Supreme Court of Canada, not only the prohibition but the criminalisation of the expression contemplated by the recommended prohibition can arguably be substantiated, subject to the explicit inclusion of a direct intention requirement.

Our point is that this does not entail that section 10(1) is unconstitutional. Section 10(1) does not create a criminal offence to protect society against the harmful effects of the extreme forms of hate speech described in section 319 of the Canadian Criminal Code or the proposed amendment. (Section 10(2) makes provision for hate speech that constitutes a criminal offence to be referred for prosecution in terms of section 21(2) of the Act.)154 Section 10(1) is rather primarily aimed at compliance with the constitutional obligation in terms of sections 9(3) and (4) of the Constitution, as well as international obligations, to protect and promote human dignity and equality.

We reiterate that it should be understood in the light of the commitment in the preamble of the Equality Act to "facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom".155 In a comparative analysis it would be more appropriate to draw from and compare section 10(1) of the Equality Act to provisions in various human rights codes of Canadian provinces than to criminal offences in terms of section 319 of the Canadian Criminal Code156 (hence our references to the Whatcott case).157

We agree that the ambit of section 10(1) is broader than that of section 16(2)(c) of the Constitution. It is also broader than the scope of the proposed amendment. In our view, this is lawfully so. Our concern is that the aspects that Botha and Govindjee propose should be removed from the scope of section 10158 were purposely designed to address the very forms of "less serious" hate speech that they call attention to when they make the following statement:159

States parties are also urged to make a clear distinction between expression which should attract a criminal sanction and expression which merely justifies a discriminatory remedy. For criminal liability it is emphasised that the speaker must intend to incite harm against the target group…According to CERD, however, less serious cases should be addressed by means other than criminal law, and here the impact of the speech on targeted groups is critical.

Section 9(4) of the Constitution requires legislation to prevent and prohibit unfair discrimination. In our view the relevant question is whether section 10(1) of the Act gives effect to this obligation without unduly infringing upon

the right to freedom of expression. By restricting section 10 to cover hate speech that warrants criminalisation, Botha and Govindjee negate this obligation.

5 Conclusion

We reconsidered and reaffirmed the premise of our understanding and analysis of section 10(1) of the Equality Act, that the expression that it prohibits unjustifiably affects the human dignity of those targeted related to their group identity, thus constituting a form of unfair discrimination. We reiterated that the most appropriate constitutional framework within which section 10(1) of the Equality Act should be interpreted and assessed is sections 9 and 10 of the Constitution. Subject to our recommended purposive reading or amendment of the first phrase of section 10(1), which we regard as poorly formulated,160 we confirmed the viability and constitutional soundness of the purposive interpretation of section 10(1) that we have offered. We criticised Botha and Govindjees' proposal on the basis that it negates the Act's primary aim, which is to give effect to the obligation in section 9(4) to prevent and prohibit unfair discrimination. Overall, having carefully considered the arguments raised by Botha and Govindjee, we maintain our view that section 10, subject to the said amendment or interpretation, duly limits the right to freedom of expression in giving effect to the obligation in section 9(4) of the Constitution to prevent and prohibit unfair discrimination.

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List of Abbreviations