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This excerpt from Don’t Film Yourself Having Sex and Other Legal Advice For the Age of Social Media has been published with permission from Penguin Books SA and is available from all leading stores.
Scroll down to find out more about the book.
Just, well took on an arrogant and disrespectful k***** inside Spar. Should have punched him, should have – Winner of FHM Modelbook 2011, Twitter (May 2012)
Dear Mr Peter Mokaba. I wish all whites had been killed when you sang “Kill the Boer”, then we wouldn’t have to experience [the above] racism – Twitter user, in response to the model’s tweet, Twitter (May 2012)
So erupted one of South Africa’s first firestorms regarding hate speech on social media.
The tweets elicited numerous complaints to the South African Human Rights Commission and, after a public outcry, the young woman at the heart of the scandal was stripped of her FHM title and sponsorship.
The whole saga was finally resolved when both women apologised after sharing a very public kumbaya moment. A similar firestorm faced a young journalist, following this Facebook post in January 2013:
On 27 March 2013, I will send out an invite to invite you to come to the Westdene Dam for a BIG Black Braai, (100% Blacks), fireworks, DJ – Black-People, celebrating their death … we will always celebrate the death of whiteness.
The comments related to the Westdene Dam disaster of 1985, in which 42 white children were killed when their school bus plunged into a dam in Johannesburg.
He also posted the names of 24 of the children who had lost their life, commenting that their deaths were ‘much appreciated, my Lord!’
No fewer than 13 complaints were made to the South African Human Rights Commission, culminating in a mediation session between the Facebook user and some of the complainants.
Expressing both remorse and regret, he made an unequivocal apology to the families of the victims, as well as the general South African public.
In terms of a settlement agreement, he undertook to, amongst other things, clean the graves of the victims and place flowers at their tombstones.
Sadly, these hateful words and actions are not a new phenomenon, but as we’ve discussed, social media does have a tendency to bring out the very ugliest side of people.
The social media posts highlighted here are just some of the horribly fitting examples of that, and the South African Human Rights Commission has expressed its concern about the growing number of instances in which people have used social media to articulate hurtful and offensive messages.
But the problem of hateful content being posted on social media is not restricted to South Africa.
In 2014, a young Muslim couple was jailed in the UK after posting three highly offensive videos on YouTube glorifying the murder of British soldier Lee Rigby, talking about how British troops would be killed on London’s streets, and laughing as they drove past flowers laid at the scene of the murder.
Facebook also regularly sees hateful pages pop up, such as ‘Jewish Ritual Murder’ and ‘Violently Raping Your Friend Just For Laughs’.
So what is hate speech?
Hate speech, which is prohibited in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA), is:
- words;
- based on one or more of the ‘prohibited grounds’ – race, gender, marital status, ethnic or social origin, colour, sexual orientation, religion and other matters impacting human dignity and equality;
- against any person;
- that could reasonably be construed to demonstrate a clear intention to be hurtful, be harmful or incite harm, or promote or propagate hatred.
Can we really prohibit speech that is hurtful?
We think that that goes a bit far, and does not properly strike the balance between dignity, equality and free speech. But that’s something for another book!
If something you say online does amount to hate speech, you’ll probably find yourself sitting sheepishly before the South African Human Rights Commission, which has a constitutionally mandated duty to monitor and assess the observance of human rights in South Africa.
Luckily for you, hate speech is not a crime (yet!), and the Human Rights Commission is not that into punishing people.
Rather, you’re likely to have to gather around, talk about your feelings, apologise and undertake a bit of restorative justice.
Your content may also fall foul of the content policy of the particular social media platform to which you posted it.
Facebook, for example, will remove content that amounts to a direct and serious attack on any protected category of people, although this does not include content that is merely distasteful, offensive or controversial. Similarly,
YouTube does not permit content that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation or gender identity.
But remember, most social media websites are based in America, and the Americans are pretty serious about freedom of expression.
One of the most notorious examples of this was the furore surrounding the film The Innocence of Muslims, which was uploaded onto YouTube in July 2012.
Perceived as denigrating the prophet Muhammad, the video led to violent protests in many Arab and Muslim nations.
Although YouTube has now voluntarily blocked the video in certain countries, Google (remember, they own YouTube) has said that the video does not violate its prohibition on hate speech.
Recently, however, the United States Court of Appeals ordered YouTube to remove the video. Why? Not because it amounted to hate speech, but rather on account of one of the actresses objecting to its content on copyright grounds.
So maybe you’re reading this thinking that hate speech on social media is not such a big deal, after all.
We’re not even going to start on the fact that you shouldn’t even be thinking things that propagate hatred and incite violence, but at the end of the day, you’re just going to get a slap on the wrist from the Human Rights Commission, and the big scary American companies are probably not going to do anything to stop you.
So what’s all the fuss about?
Your reputation. Remember how we told you how the reputational consequences of getting it wrong on social media are often so much more serious than the legal consequences?
What do you think the first thing is that pops up when you google the name of any of the people we’ve discussed in this chapter?
We’ll give you a hint: it’s not anything relating to the good that they do or their successes in life. It is, instead, endless articles reminding the world of their disgraceful comments.
The Internet doesn’t forget.
The ‘racist’ label is likely to haunt them for many years to come.
So if you do wake up one day feeling particularly hateful and gross, please just take a breath, think about cuddly bunnies, and choose to fill your brain with kind and decent thoughts instead.
Because if you do go ahead and rant on social media, we guarantee that you’re going to get fired or expelled from school, and for the rest of your life everyone in the whole world will know you as ‘That Hate Speech Idiot With No Friends and No Job’.
About the book:
In the digital age you can get into serious legal trouble at the click of a button.
The shift from passive Internet user to active digital citizen has brought about unprecedented levels of online interaction, creation and connecting.
But as people begin to share more and more about themselves and their lives on social media, they are finding themselves getting into trouble for what they say and do online.
Emma Sadleir and Tamsyn de Beer, who together run one of South Africa’s leading social media law consultancies, point out the social traps and legal tangles that you could find yourself facing as you navigate the murky waters of the digital age.
In a fun, witty and easily accessible way, this ground-breaking book details the legal, disciplinary and reputational risks that you, your company and your children face online.
By outlining the laws and rules applicable to what you do and say on social media, and providing practical and common sense advice, Don’t Film Yourself Having Sex ultimately shows you that in order to reap the extraordinary benefits of digital technology without succumbing to its risks, you need to start practising responsible digital citizenship.
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