To ‘uphold and safeguard the constitutionally entrenched rights of equality and dignity’, the South African legislature recently circulated the Prevention and Combatting of Hate Crimes and Hate Speech Bill.<\/p>\n
According to Nadia Froneman, an associate at law firm Eversheds Sutherland, the bill has not yet been passed into law. However, it is important for employers to be aware of so as to mitigate against any potential future risk.<\/p>\n
“The bill is different from the Promotion of Equality and Prevention of Unfair Discrimination Act in that it will expressly criminalize acts which constitute hate crime and hate speech.”<\/p>\n
Hate crime<\/strong><\/p>\n In terms of the bill, a hate crime is an offence which is recognised under any law, the commission of which is motivated by the perpetrator\u2019s prejudice or intolerance towards certain characteristics or perceived characteristics of the prospective victim\/s.<\/p>\n A victim can be both natural and juristic persons (such as a company), said Froneman.<\/p>\n “The characteristics referred to are listed in the bill and includes, but is not limited to, race, culture, ethnic or social origin, gender or gender identity, sex (which includes intersex) and sexual orientation.”<\/p>\n Hate speech<\/strong><\/p>\n According to Froneman, the bill provides that an act of hate speech is perpetrated by an individual who intentionally publishes, propagates or advocates anything or communicates to any person in a manner which could reasonably be construed to demonstrate a clear intention to:<\/p>\n “Furthermore, a person who intentionally distributes or makes available an electronic communication which they know constitutes hate speech through an electronic communication system can also be guilty of an offence,” she said.<\/p>\n She said that as is the case with most laws, there are exceptions to the general rule and the rule prohibiting the use of hate speech is no different. An act of hate speech will not be an offence if it is done in good faith in the course of engagement in:<\/p>\n Sanctions<\/strong><\/p>\n “In the event that someone is convicted of an offence of hate speech they will be liable to a fine or to imprisonment not exceeding three years or both in the case of a first conviction,” said Froneman.<\/p>\n “In the case of any further conviction, they will be liable to a fine or imprisonment not exceeding five years or both.”<\/p>\n She added that it is important for an employer to appreciate the risk which the digital age poses.<\/p>\n “An employer could be held to be vicariously liable for the acts of its employees. Indeed, an employer could also suffer damage to its reputation as a result of its employees\u2019 inappropriate use of social media in the workplace,” she said.<\/p>\n “The bill makes it an offence for an individual to intentionally disseminate material which constitutes hate speech.<\/p>\n “This dissemination will include postings on social media platforms. As a result, employers should seek advice on ways in which to manage social media usage in the workplace so as to avoid facing criminal penalties and\/or reputational and\/or incidental financial harm as a result of its employees\u2019 (potential) misconduct,” said Froneman.<\/p>\n\n
\n
\n