Incitement of violence online: How law deals with this while shielding free speech

While freedom of speech is a right, incitement of violence is a punishable offence, the South African Human Rights Commission (SAHRC) and legal expert Emma Sadleir have cautioned.

The warning follows threats on social media against foreign nationals ahead of Youth Day.

The SAHRC said it had alerted the national police commissioner's office about the threats and would monitor the culprits. It reserved the right to pursue charges under the Cybercrimes Act. 

“While the commission does not dismiss genuine grievances about crime or service delivery, we remind the public that freedom of expression does not extend to speech that incites hatred or violence,” it said. 

The commission encouraged people to report any alleged criminal or unlawful activity to police and other competent authorities rather than taking the law into their own hands, and to consult the SAHRC Social Media Charter for guidance on responsible online conduct.

It said it was encouraged by the Hawks confirming they would urgently look into this matter. 

Sadleir said while the right to freedom of speech is a fundamental constitutional right, it is not absolute and there are limitations.

“If it was an absolute right, then you could have child pornography on the front page of the newspaper, and we all agree that is a valid limit to not have child pornography on the front page of the newspaper,” she said.

“We also have conflicting rights. We have the right to life, for example, so if somebody is inciting, telling people to go kill other people, then that's infringing on another person’s right to life.”

Hate speech infringes on someone's right to equality and dignity.

There isn't any right in the Bill of Rights which is more important than another right, and it is a balancing act, Sadlier said. The right to freedom of expression, even in the constitution, does not extend to incitement, propaganda or hate speech.

Oversight of this would be dealt with under common law and the Cybercrimes Act. She said the act tries to put all the different laws that apply to cybercrime, like electronic data messages, under the umbrella of one law. This encompasses crimes relating to extortion, abuse, hacking and non-consensual distribution of private sexual images.

One of the sections talks about how it's a criminal offence to send an electronic message or a data message — this can be a voice note, a post on X or WhatsApp group text — advocating violence.

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