Racism & xenophobia

South Africa: Hate speech versus freedom of expression highlighted

2001-12-20, Issue 47

http://pambazuka.org/en/category/racism/4837

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The dispute between Cape Town based Radio 786 and the South African Jewish Board of Deputies which is now before the constitutional court has again highlighted the need for engagement on hate speech versus the freedom of expression. The matter has also raised the incompatibility of apartheid regimes' laws on media and the country's constitution.

To: IFEX Auto List (other news of interest)
From: Freedom of Expression Institute (FXI), fxi@fxi.org.za

Weekly focus

Hate speech versus freedom of expression highlighted

The dispute between Cape Town based Radio 786 and the South African Jewish
Board of Deputies which is now before the constitutional court has again
highlighted the need for engagement on hate speech versus the freedom of
expression. The matter has also raised the incompatibility of apartheid
regimes' laws on media and the country's constitution.

The dispute relates to programme aired by radio station 786 in 1998, which
dealt with Zionism and the State of Israel. It is alleged that Doctor Yaqub
Zakie who was guest on the programme, raised question about the Holocaust.
The South African Jewish Board of Deputies lodged a complaint against the
content of the programme in terms of Clause 2(a) of the Code of Conduct for
Broadcasters, with the Monitoring and Complaint Unit (MCU) of the then
Independent Broadcast Authority.

According to Clause 2(a), "Broadcasting licensees shall not broadcast any
material which is indecent or obscene or offensive to public morals or
offensive to the religious convictions or feeling of any section of the
population."

The IBA (now ICASA) in its position paper on revision of the IBA's Code of
Conduct for Broadcasters in April 1999, noted that Clause 2(a) which was
extracted from the Broadcasting Act of 1974 - was at odds with the freedom
of expression provisions in the Bill of Rights. The Authority also noted
that even unpopular and offensive speech is protected and that any attempt
to limit such speech carries also the potential to limit artistic
creativity.

In term of the proposed new Code of Conduct submitted to the Parliament
Communications Committee by the IBA after its 1999 inquiry, Radio 786 may
not have been in dispute with the Jewish Board of deputies had Parliament
taken the time to look at the proposed Code of Conduct.

On language, the IBA states that; "Offensive language, including profanity,
blasphemy and other religiously insensitive material shall not be used in
programmes especially designed for children." The IBA's emphasis is not on
avoiding use of offensive language but on regarding the time it is used and
audience (in this case not to be used in children programmes.)

Radio 786 is now asking the Constitutional Court to declare Clause 2 (a) of
the Code of Conduct for Broadcasters, unconstitutional on three grounds. The
call is being made firstly on the grounds that it limits freedom of
expression, secondly because it is too broad and thirdly on the bases of it
originates in the apartheid racist regime. The radio station also argues
that the Clause regulates content, which is difficult to implement.

In terms of the Constitution freedom of expression is a condition
indispensable to the attainment of all other freedoms. However, it is
subjected to limitation under section 36 of the constitution. It is also
weighed up against many other rights, including the right to equality,
dignity, privacy, political campaign, fair trial, economic activity,
workplace democracy, property and most significantly the rights of children
and women.

Another interesting development is the fact that the matter has brought into
question the constitutionality of Clause 2(a) of the Code of Conduct for
Broadcasters, which was the apartheid regime passed to prevent criticism of
its policies.

The South African government for example and other privilege organizations
in the country have often referred back to apartheid laws which are not
compatible with the constitution of the country (similar to Clause 2(a) in
order to stifle debates or deny access to information.

The Department of Justice for example still uses Section 205 of the Criminal
Procedure Acts in order to subpoena journalists despite constitution
emphasis on a free press.

The Ministry of Defense is equally guilt of manipulating the legal system to
denying access to information. Public Protector Selby Baqwa earlier this
year used Section 118(a) of the Defense Act of 1957 to bar broadcasters from
giving live coverage of the hearing into the arms deal. The Act requires the
permission of the Minister of Defence to convey information regarding
certain aspects of the Defence Force. Section 11 of the Armaments
Development and Production Act Act 57 of 1968 prohibits the disclosure by
any person, including the news media, of any information relating to the
acquisition in connection with armament by for or on behalf of the Armament
Corporation without the written authority of the Minister or other
authorized person.

It is yet another unfortunate incident that the South African Board of
Jewish Deputies would like to be identified with the same tactics that the
government is playing. It is important that the compatibility of section
2(a) of the Code of conduct for Broadcasters and the country's constitution
have been brought before the constitution. As the FXI we also agree that the
Board of Deputies have the constitutional right to be heard.

We agree that if anyone is maliciously offended they should seek recourse
however, the process should be in the spirit to encourage debate not
stifling it. A distinction between academic engagements and narrow
arguments, which have no intellectual backing, should be made to avoid
stifling of genuine debates. However, we do not agree with the use of
apartheid laws to censor free speech and the narrow definition of hate
speech in order to stifle debates.

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