More and more, we are seeing cases of businesses getting into hot water when an employee behaves inappropriately on social media. Hate speech can damage a brand’s image in an instant and now, as a result of a new South African bill which is not yet passed into law, it may get companies into legal trouble as well. Last month, the South African legislature circulated the Prevention and Combatting of Hate Crimes and Hate Speech Bill.

The Bill differs from the Promotion of Equality and Prevention of Unfair Discrimination Act in that it makes it a criminal offence for an individual to intentionally disseminate material that constitutes hate speech, including on social media platforms. If someone is convicted of hate speech, they are liable for a fine or to a term of imprisonment not exceeding three years.

Employers could be held vicariously liable for their employees’ actions and also suffer damage to their reputation as a result of an employee’s misuse of social media during office hours.

According to the Bill, a hate crime is defined as “an offence which is recognised under any law, the commission of which is motivated by the perpetrator’s prejudice or intolerance towards certain characteristics or perceived characteristics of the prospective victim/s.” An individual, an organisation or a group of people can all be victims of a hate crime.

The Bill adds that an act of hate speech is perpetrated by an individual who intentionally publishes, propagates or advocates anything or communicates to any person in a manner which could reasonably be construed to demonstrate a clear intention to be harmful or incite harm or promote or propagate hatred.

There are some exceptions to the rule. An act of hate speech will not constitute an offence if it falls under:

  • Any good-faith artistic creativity, performance or expression to the extent that it does not advocate hatred that constitutes incitement to cause harm;
  • Any academic or scientific enquiry;
  • Any fair and accurate reporting or commentary in the public interest or publication of material in accordance with the Constitution (the right to freedom of expression); or
  • The bona fide interpretation and proselytisation or espousing of religious material to the extent that it does not advocate hatred that constitutes incitement to cause harm.

Companies need to comprehensively assess their approach to the use of social media in the workplace and set clear boundaries for their employees in terms of what is acceptable in order to ward off the risk of hate speech online.