Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 December 2006

Hate speech on the internet

An interesting article in the Mail & Guardian discusses the issue of hate speech on online websites in the wake of an Internet discussion on Zimbabwe on the SABC news website. The discussion soon degenerated into hate speech. The site quotes a lawyer who says:

the constitutional definition of hate speech is very tight and that the context of the publication and the words used must be extreme and actively incite harm to be considered hate speech.

Of course, the definition of hate speech in the Promotion of Equality and Prevention of Unfair discrimination Act is much broader than in section 16(2). Nevertheless, the constitutional definition of hate speech is not nearly as broad as most people think.

Many people confuse hate speech with hurtful speech. It is not hate speech to be called racial names or to be called a “moffie“. What is required is something more, one needs utterances that “constitute incitement to cause harm” based on race, ethnicity, gender or religion. The harm that is to be incited does not have to constitute physical harm but it must at least constitute serious emotional harm.

And there must be “incitement”.

If one therefore merely says something hurtful to someone else, it will not constitute hate speech as defined in the Constitution. One has to say something that constitutes incitement to cause at least serious emotional harm to a person or a group.

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