What Gareth Cliff's victory means for rules of twar against racism: iLIVE
South Africa has been ablaze with statements on social media.
The Gareth Cliff v Mnet case provides essential context to recent events:
A tweet sparked by Penny Sparrow referencing beach goers as “monkeys” caused public outcry and wide-spread criticism.
Tension smoldered as Chris Hart’s commentary called for his dismissal due to allegations of racism.
Nicole de Klerk’s verbal assault on L’Omarins Queen’s Plate attendees was nothing short of an inferno throughout Facebook.
Holocaust (literal meaning for “totally burned”) could best describe the statements of Velaphi Khumalo, an alleged employee of the Gauteng Department of Arts and Culture.
The Gareth Cliff v Mnet case is perhaps the most significant as it provides a measure of control to this social media fire.
Cliff, commenting on the Penny Sparrow incident referenced free speech which culminated in his position as the S.A Idols judge being revoked.
Mnet explained its decision that Cliffs statements were not necessarily racist but they showed a lack of sensitivity for South Africa’s past and (perhaps) implied his statements supported Hate Speech:
In a judgement delivered on 29 January 2016 (last Friday), Judge Nicholl’s findings were both discerning and illuminating in dealing with the issue.
It recognised the argument that being branded as a racist in South Africa, today, does irreparable harm and comparable to a social “death sentence”. [paragraph 25]
What transpired in the court hearing was that Mnet may not have considered Cliff’s statement racist. However, the public outcry and social media firestorm that followed caused him to be the “poster boy” for racism which compelled Mnet to terminate the relationship. [paragraph 26]
Legally, Cliff brought his application on an “urgent basis”. What had to be decided at this stage was whether the court needed to take action on an urgent basis. Usually, monetary harm is not a ground for urgency because the court can always award money to a wronged person at a later stage. There is no need to jump the court que and go to the front of the line so the court can hear monetary matters urgently. A textbook example of justified urgency is when a child is going to be taken outside the Republic and courts must act immediately to prevent that child from being removed without consent.
The court found that Cliff’s application deserved urgency because the damage caused by social media allegations of racism do grave damage which must be addressed before they escalate.
This decision is critically important for a number of reasons. It sends a strong message that calling someone a racist doesn’t necessarily make them racist. Doing so without legitimate grounds causes irreparable harm to them. Moreover, employers cannot destroy someone’s livelihood and good name because of unjustified pressure from social media.
The decision is also significant for many victims of social media allegations who don’t have the money or status to ventilate these issues in court.
A good example is the social media burning of a fashion editor asked to find an intern for an increased workload. She advertised a one week’s unpaid internship on twitter. The fashion editor was subjected to flaming abuse and allegations of racism:
The problem is that even after tweets are deleted, serious damage is caused which must be addressed urgently. Racism is evil and attacks dignity, South Africa’s most robust human right in the Constitution. Social media goes a long way identifying and combatting this evil. However, unfairly labelling someone as racist burns dignity and must be considered with equal gravity.
In a poll conducted on SABC 1 on 31 January 2016 (last Sunday) it was asked whether the youth of our rainbow nation could end racism. The result was a chilling “No”. While this may be disappointing, it is at least realistic. All countries have to deal with racism in one capacity or another. The presidential campaign of Donald Trump in the United States is a good example of intolerable racism and bigotry.
The rainbow of our nation has not failed. It marks beauty and hope after a trembling storm. However, by its very nature, a rainbow appears temporarily before its brilliance fades. Now is the time for hard work to extinguish the fires that burn. It may require everyone to get a little dirty in the ashes that follow but that’s how victories are realistically achieved.
-Russel Luck is a technology attorney at SwiftTechLaw