Picture: ISTOCK
Picture: ISTOCK

The South African context should be taken into consideration in deciding if a blog written about denying white men the franchise was indeed hate speech, AfriForum argued in an appeal against a press ombudsman finding on Monday.

Ombud Johan Retief found against the Huffington Post after a blog that was written under the pseudonym Shelley Garland was found to be hate speech.

Monday’s appeal took place before the Press Council’s appeals committee, headed by Judge Bernard Ngoepe.

Verashni Pillay, who was editor of the Huffington Post at the time the blog was published, took the judgment on appeal in its entirety, while Media Monitoring Africa (MMA) and the South African National Editors Forum (Sanef) joined the appeal against the finding of hate speech, as amicus curiae.

Pillay, MMA and Sanef argued that it did not amount to hate speech.

The appeal dealt with two rights: freedom of expression and the right to equality.

Afriforum representative advocate Mark Oppenheimer said the South African context in which the blog was published was one in which white people were told they were not welcome and could not own land.

He referred to comments by EFF leader Julius Malema after a court appearance in Newcastle in 2016: "We are not calling for the slaughter of white people‚ at least for now …"

Oppenheimer also referred to EFF spokesman Mbuyiseni Ndlozi’s comment on Malema’s comments, as well as comments by Black First Land First spokesman Lindsay Maasdorp when he was still a FeesMustFall activist that white people should be killed.

But advocate Ben Winks, for Pillay, said such a comparison was absurd. The blog did not use violent language and did not amount to hate speech.

Advocate Steven Budlender, for Sanef and the MMA, said hate speech should be defined as narrowly as possible and that the blog in question did not pass for hate speech when it tested against three questions: did the piece advocate hatred based on race, ethnicity, gender and religion; did it constitute incitement to cause harm; and was there overarching public interest to publish.

Budlender said the text could merely be described as faux academic and not as advocating hatred. Hate speech did not receive any protection in the Constitution and if the judgment was upheld as was, it meant the comment made in the blog had no protection under section 16 of the Constitution at all.

It would have even less protection than child pornography, which courts had said had some marginal value under section 16, Budlender argued.

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