A Sanef win against the EFF will be a major blow to media freedom - News24

12 August 2019 - But if the Sanef case succeeds, it will be a sad day, because the media will have been complicit in curtailing a foundational freedom. And that will be the ultimate irony.

Helen Zille

Freedom of speech is often (correctly) cited as the most fundamental right in a democracy, except for the right to life itself. It is not just "one right among many". It is "first among equals". 

Few other freedoms can survive if people are prevented from writing and saying what they believe, even when their utterances are obnoxious or wrong. Of course, as with all other rights, there are limits. The right to free speech does not extend to defamation or hate speech, for example. But hurtful, even hateful speech is not necessarily "hate speech" as defined in our Constitution.

To qualify as "hate speech" an utterance must involve "incitement to imminent violence" or "incitement to cause harm". According to the Constitution, a sexist or racist utterance, on its own, without incitement to violence, is not hate speech. In contrast, an exhortation such as "Kill the Boer" is. If a verbal assault does not meet the precise definition of hate speech, it is constitutionally permissible, even when it is profoundly abusive and insulting.

Given these parameters, I have been interested to read that the South African National Editors' Forum (Sanef) and five prominent journalists are taking the Economic Freedom Fighters (EFF) to the Equality Court for making "threatening and hateful" statements about them.

The media reports on the court case have been confusing, to say the least. The first problem is that those I have read, have not explained the legal basis for Sanef's challenge.

Most of them read as if Sanef is trying to prevent people from being nasty to journalists. At face value, this seems ludicrous, not to mention ironic, given the extent of the gratuitous nastiness that often passes for journalism these days. 

Of those I have read, the report that comes closest to explaining the legal basis of Sanef's case was by Ferial Haffajee, in the Daily Maverick, who explained that, "Sanef is bringing a case in the Equality Court against the [EFF] to have journalists declared a group which requires protection under Section 10 of the Constitution which governs hate speech."

The only problem is that Section 10 of the Constitution does not govern hate speech. It deals with human dignity.

"Everyone has dignity and the right to have their dignity respected and protected," the clause reads.

At face value, this could be interpreted as protecting anyone from insult and hurtful speech. But this would be a misinterpretation.

In a democracy, the right to speak your mind is considered fundamental to a person's dignity. The fact that another person may feel hurt or insulted is considered, in law, a lesser violation of dignity.

The best explanation I have found for this, is by Dr Brad Patty in a paper titled "Free speech versus human dignity". The guidelines, he argues, are as follows: "If speech does not present an immediate threat of physical harm, then the violation of human dignity inherent in telling people that they may not speak their thoughts is greater than any violation that comes from hearing such thoughts. Only if speech threatens immediate physical violence do they endanger human dignity more than the bar on being allowed to speak your mind."

So why has Sanef brought this case? After all, freedom of speech is the foundational value on which media freedom rests. Are journalists claiming the right to exercise their freedoms (including to be hateful and hurtful, which they regularly are) while preventing others from doing so?

Given that Sanef and almost all the journalists who have brought the case are active commentating participants in day-to-day politics, rather than mere neutral observers, do they expect to be immune from blow-back?

It's an interesting question which is why the case deserves more attention than it has thus far received.

Again, I have searched in vain for answers, but Haffajee's piece is instructive. She makes the case that her personal dignity has been impaired by being named as a member of a journalistic cabal (ironically by a fellow journalist), called all manner of disgusting names on social media, depicted as a gargoyle and prostitute, had her image photoshopped into suggestive poses, been the target of the Bell Pottinger bots and sock-puppets, and told to "go back to India". 

It became so bad, she complains, that she lost her characteristic confidence. This caused her to do her job with stooped shoulders, timidly asking questions at EFF press conferences. In fact, so hurt was she, that (ironically) she did not see her way clear to join Sanef's case against the EFF.

She had been left by the wayside, she whimpers, as "road kill".

To me, that sounds like an ordinary day at the office. 

Of course, we politicians must be able to tolerate more abuse than the average person, including intermittent death threats such as the example below from @athi_mhlaba.

"Where do you live in CT Helen??  I seriously want to pay you a visit and butcher you since you are leaning closer to death in any case given your age!! Or you can come to me, I live in Nyanga, Crossroads, Veza, house number 1734 next to a school called Sigcawu, my panga is ready."

Seeing that the would-be butcher had conveniently provided his address, I passed it on to the police, who did nothing.

Let me stress, I support using the full force of the law against people who transgress the prohibitions on genuine "hate speech" and defamation. I myself have received an out-of-court settlement from Julius Malema and the EFF in a defamation case.

However, Haffajee appears to argue that journalists deserve special additional protection, beyond the current law, especially if they are women.

"Women journalists come in for particular targeting in a trend now called cyber-misogyny. Naming it makes it no less painful, as I have found," she sniffs.

Sanef's court case, says Haffajee "is an attempt to get the judiciary to declare that this kind of hate is hate speech in terms of our Constitution, and that it impacts on the founding statute's freedom of expression provisions".

Well, if Sanef succeeds in doing this, it will massively extend the constitutional definition of hate speech and be a serious set-back for freedom of expression.

I always imagined that Sanef would be the first to defend these rights. Which of course they do (until journalists become the targets). As Haffajee disarmingly admits: "I enjoyed Twitter until it turned on me."

Which brings me to some other prominent media matters involving Haffajee.

Readers may have forgotten that she was the editor of City Press when the newspaper published a full colour picture of Brett Murray's painting "the Spear" depicting Jacob Zuma with his genitals hanging out. Demand for this edition of the newspaper soared, despite ANC calls for a boycott.

In the ANC-led outrage that followed (ironically, also based on the "dignity clause", Section 10 of the Bill of Rights) Haffajee and other journalists defended the publication of the photograph on the basis of the over-riding right of free expression.

Then there was the case involving Haffajee in her role as editor-at-large of the defunct South African version of the Huffington Post, when she and two other journalists gained access to a person's office, (under false pretences), to accuse him of successfully submitting an article for publication (under false pretences).

People may recall the name Shelley Garland. Shelley was actually researcher Marius Roodt, posing as a UCT Master's student in philosophy "with an emphasis on feminist thought". 

Setting out to expose the biases and sloppy fact-checking in sections of the South African media, "Shelley" submitted an article to the HuffPost proposing that white men "be stripped of the franchise" given that the "white male vote had given the world Trump, Brexit and a number of DA-controlled metros!"

"Shelley" not only proved her point about certain sections of the media, but watched bemused as the Huffpost's editor, Verashni Pillay defended the article, describing it as "pretty standard feminist history" – before resigning.

It was also fascinating to recall that Haffajee was quoted as calling Roodt "a bit of a doos", the Afrikaans version of an insult she received on Twitter, to which she so vehemently objects.

Roodt (posing as Shelley) was not the pioneer of this particular genre of "fake news". 

In a famous academic experiment, three researchers sought to prove that in certain disciplines, (clustered together in a category dubbed "grievance studies"), a writer can get any nonsense published as long as it is steeped in the narrative of victimhood and the "lexicon" of identity. 

The academics explained how they deliberately began each of 20 "research papers" with an absurd or "deeply unethical" hypothesis (or both), how they made up "facts", and engaged in intentional sophistry. They then submitted these papers for publication, and succeeded, sometimes in respected academic journals.

According to the Irish Times, "One paper about rape culture in dog parks (in which the writer claimed to have inspected the genitals of just under 10,000 dogs while asking their owners about their sexuality) was honoured for excellence as one of 12 exemplary pieces in feminist geography by highly ranked journal Gender, Place and Culture, which published the paper."

The experiment proved an important point, about the prevailing biases in certain publications and that is exactly what Roodt set out to expose. 

But many journalists, with Haffajee and her colleagues in the lead, presented themselves as the outraged victims of the hoax.

I had a sense of déjà vu when I read her background article on Sanef's case before the High Court.

It also bears mentioning, that Haffajee's Daily Maverick piece misreported the legal basis of Sanef's case. Having subsequently managed to read their court papers, it is clear the matter is being brought under Section 9 of the Promotion of Equality and Prevention of Unfair Discrimination Act.

The court is going to have to determine whether Section 9 of this act is capable of extending the definition of "hate speech" under the Constitution. In my interpretation as a lay person, the Constitution should trump the act.

Another interesting point that emerges out of the court papers, is that, quoted in full context, Malema's remarks, on which the case is primarily based, show that he specifically urged his followers not to use violence against journalists. A little bit of context, I have found, makes a lot of difference.

But if the Sanef case succeeds, it will be a sad day, because the media will have been complicit in curtailing a foundational freedom.

And that will be the ultimate irony.

- Zille is a senior policy fellow at the South African Institute of Race Relations.