WhatsApp messages can land you in jail in South Africa

President Cyril Ramaphosa recently signed the Preventing and Combating of Hate Crimes and Hate Speech Bill into law, criminalising hate speech sent on platforms like WhatsApp and social media.

The bill’s purpose is to provide for the offences of hate crime and hate speech and the prosecution of people who commit those offences.

First introduced in 2018, the bill states that an offence constitutes a hate crime where the offender is inspired by prejudice towards a victim due to specific or perceived characteristics such as race, gender, sex, religion, and liability, among other things.

In comparison, the bill defines hate speech as intentionally publishing something that can provoke or promote hate.

However, both relate to these specific or perceived characteristics. The bill provides an extensive list of characteristics, quoted below.

Age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality and migrant or refugee status, occupation or trade, political affiliation or conviction, race, religion, sex, or sexual orientation.

According to the bill, hate speech can take the form of any written, illustrated, visual display, utterance, representation or reference, or electronic communication.

As a result, WhatsApp messages that constitute hate speech can now be prosecuted.

“The law makes it an offence when speech material is intentionally distributed or made available in electronic communication, and the said person knows that such electronic communication constitutes hate speech,” the Presidency said.

The bill also highlights the consequences for anyone convicted of hate speech.

It says convicted persons can face a fine, imprisonment not exceeding three years, or both a fine and imprisonment.

Any subsequent conviction will earn them another fine, imprisonment not exceeding five years, or a combination of the two.

However, the bill specifies that these hate speech laws don’t apply to anything done in good faith, such as:

• artistic creativity, performance, or other form of expression;
• academic or scientific inquiry;
• fair and accurate reporting or commentary in the public interest; and,
• Interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings

The bill lapsed after its introduction in 2018 and was revived a year later.

Despite two Constitutional Court Judgements blocking its progress, parliament passed the bill and gave it to Ramaphosa in December 2023. He signed it in early May 2024.