WhatsApp messages to friends and business partners that could land people in jail in South Africa

“The court certainly provided clarity, and even more so. The court said that this communication of using the k-word to another white person isn’t only hate speech, but also constitutes harassment,” said Hull.

“You’re assuming that this white person you’re speaking to is going to acquiesce with your views, your racist views, which amounts to harassment of that person.”

Jissesf*k.
Better stock up on some functioning cheese vans then and start loading up whities left and right, I will f**ing say whatever I want to f**ing say you f**ing p**s.
 
Polite chats 'R Us



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WhatsApp messages to friends and business partners that could land people in jail in South Africa​

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I think the article headline doesn't match the judgement

Hull didn't actually go and cite where the boundary lies. Because the case actually does make that.
“The court said that the communication element here for hate speech is not limited to public communication; it can include private communication,” Hull stated.

However, she added that this ignores what is known as the inner sanctum of a person: “something that is so personal, so private, that it should potentially be excluded from constituting hate speech”.

“That’s what’s so interesting about this judgment. It provided clarity that previously we didn’t have on this question,” Hull said.
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This is the important part of the case, because the Qwelane judgment
[52] In protecting private communication, Qwelane also follows Canadian jurisprudence but acknowledges that s 319 of the Canadian Criminal Code, which criminalises hate speech, extends to private communication. Furthermore, the protection of private communication in Qwelane is premised, in part, on the understanding that such communication exposure of target groups to hatred, negative stereotyping and unfair discrimination, is improbable with private communication.



[53] We are not here concerned with ‘most private communications’. The Equality Court correctly reasons that privacy is not a binary concept. It exists on a spectrum in relation to the nature of and parties to the conduct in question. In Bernstein the Constitutional Court held: ‘[p]rivacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interactions, the scope of personal space shrinks accordingly’.[33] As such, while the communications impugned in this case happened behind closed doors, affording them the protections provided by s 14 of the Constitution would be counterproductive and would derogate from the purpose of s10.[34]



[54] The impugned communications were made in the context of social interactions between two business associates rather than within the ‘inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community’.[35] The Equality Court was therefore correct in finding that communications between business associates, even if conducted one-on-one, or at private business premises, or by personal text messages are located too far along the privacy continuum to enjoy the privacy envisaged in Qwelane.​
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Basically the judgement found that you don't have much of an expectation of privacy in terms of the boundaries set by the Qwelane judgement for hate speech when you are communicating with a business associate.

Were it with a family member, or your friends, it is likely that such communication would be protected speech.

To me, that makes quite a bit of sense.

The next part gets a bit iffy.

[57] This much is acknowledged by the Court in AfriForum,[41] and AfriForum goes further to identify an instance where privacy could be misused to shield conduct that causes harm to social well-being. It identifies an instance in which a seemingly private communication ‘exposes a group to hatred’ by preserving or propagating hateful ideas, such as racism and white supremacy, against a target group.
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The problem is that hasn't actually been tried yet:


[73] However, Afriforum’s reliance on these statements by the Constitutional Court, merely underscores the inappropriateness of deciding, in the present case, the question whether private displays of the old flag contravene the Equality Act. This however, is not to say that a private display of the old flag can never breach the provisions of the Equality Act. It is hard to see how a display of the old flag in the privacy of a home to which, for example, family members, children or young people are invited and indoctrinated in racism and white supremacy, would not entitle a person to institute proceedings in the Equality Court for an order that there has been a breach of the Act. But that is a case for another day.
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Yet they seemingly make a judgement based on the Afriforum definition of privacy without that case being fully argued.


[58] Generally, the sole purpose of the k-word within the South African context, both historically and presently, is to spurn and demean black people. Its use with reference to black people is inherently hateful. The rationale for the restrictive approach taken by the Constitutional Court in Qwelane was that private conversations that are held within the inner sanctum of a person are unlikely to undermine a target group’s dignity, social standing, and assurance against exclusion, hostility, discrimination and violence in the same manner and to the same extent as public statements do. [42] Apart from the fact that the communications under consideration in this case do not fall within the inner sanctum of the persons concerned, objectively they cause harm to the target group and constitute propagation of hatred.


[59] In this case, the findings of the Equality Court resonate with Qwelane. The purpose underlying s 10 is to prohibit speech that exposes the target group to hatred, negative stereotyping and unfair discrimination. Where private communication has the effect of defeating that purpose, it cannot escape censure. As the Equality Court put it:‘. . . it would be difficult to find that these laws and authorities were purposed for protecting any persons that used the k-word in private in the hope that the third party the speaker had communicated with would be like-minded ’.[43]​
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Seems they contradict themselves again, either you have the private sanctum or you don't. That probably could be something the ConCourt will settle. I mean negative stereotyping is basically common speech for most people. Any time progressives talk about white privilege for example, it is a negative stereotype.

The court for some reason also doesn't actually understand what 3rd party means:
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A third party would be someone who the speaker didn't communicate with. So if the speaker A said something potentially offensive to speaker B. Speaker B didn't have a problem with it but speaker B's wife (who was not party to the communication) did.

Going to be very interesting if this moves to the concourt. The guy in this seems loaded, so he probably could afford the same legal counsel as Qwelane did.
 
konfab said:
I think the article headline doesn't match the judgement

Hull didn't actually go and cite where the boundary lies. Because the case actually does make that.


This is the important part of the case, because the Qwelane judgment


Basically the judgement found that you don't have much of an expectation of privacy in terms of the boundaries set by the Qwelane judgement for hate speech when you are communicating with a business associate.

Were it with a family member, or your friends, it is likely that such communication would be protected speech.

To me, that makes quite a bit of sense.

The next part gets a bit iffy.

The problem is that hasn't actually been tried yet:



Yet they seemingly make a judgement based on the Afriforum definition of privacy without that case being fully argued.

Seems they contradict themselves again, either you have the private sanctum or you don't. That probably could be something the ConCourt will settle. I mean negative stereotyping is basically common speech for most people. Any time progressives talk about white privilege for example, it is a negative stereotype.

The court for some reason also doesn't actually understand what 3rd party means:
View attachment 1945018

A third party would be someone who the speaker didn't communicate with. So if the speaker A said something potentially offensive to speaker B. Speaker B didn't have a problem with it but speaker B's wife (who was not party to the communication) did.

Going to be very interesting if this moves to the concourt. The guy in this seems loaded, so he probably could afford the same legal counsel as Qwelane did.
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Thanks for your excellent insights.

The court seems determined to answer the ancient koan "if a tree falls in a forest with no witnesses - does it still make a sound?" with a resounding, meddlesome YES!
 
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