Mapula Thebe – editor

The beginning of 2016 saw the racial debate being resuscitated by several social media posts. This highlighted the importance of being mindful when posting on social media, the need for legislation that will appropriately deal with such and the fact that one cannot be protected under the guise of freedom of speech for hate speech.

Currently racism is a matter that has no threat of legal consequences, a situation government seeks to remedy in future. The applicable legislations in relation to these matters are the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Deputy Minister of Justice, John Jeffery, is quoted as saying that government is working on adding hate speech and racist behaviour to the existing Bill on hate crimes. While Minister of Justice Michael Masutha noted that the Bill would have to strike a balance between discouraging hate speech and allowing for freedom of speech.

Following the racist posts, the National Association of Democratic Lawyers issued a press release stating that: ‘So often racists give qualified excuses and get away with the crime of racism which our Constitution prohibits. The time has come for the state to use its power to punish racists instead of lamenting it. The time has come also for all South Africans to act on racism and racists instead of expressing mere outrage.’

The KwaZulu-Natal Law Society also issued a press statement following the racist posts. The press release said:

‘Notwithstanding the fact that South Africa has the most liberal Constitution in the world which underpins the values of democracy, equality and freedom, including the freedom of expression, it is clear that our cumulative laws are not sufficient to address and curb the pockets of overt racist conduct manifested in the posting.

While the KwaZulu-Natal Law Society reinforces its commitment to the right of the freedom of expression and the defence thereof we believe that such freedom extends to the robust and vital discourse necessary for the enhancement of a democratic society and was never intended to protect prejudiced and bigoted utterances which are manifestly of a divisive and deeply hurtful nature.’

When posting on social media, an individual may see this as a social platform that is only seen by those who are their contacts, which is written in their personal capacity and is not linked to their professional lives. All it takes is for one of the contacts to screengrab the post sending it to several others, before long the post is seen by thousands going viral or trending on all social media platforms. It is a misleading notion that individuals can post on social media in their personal capacity as it was evident in the many cases of people losing their jobs due to posts made on social media.

While social media can be a useful tool for promoting an attorney or a practice, it also has its disadvantages, which attorneys need to be aware of. Young attorneys were reminded of the pitfalls of using social media late last year at a symposium organised by the Law Society of South Africa in conjunction with the International Bar Association (see ‘Beware of social media pitfalls’ on p 10). Speakers at the symposium also reiterated the fact that attorneys are held accountable to higher standards of ethical conduct, this of course extends to the usage of social media.

This article was first published in De Rebus in 2016 (Jan/Feb) DR 3.