In the age of social media, where everyone has a platform to express their thoughts and opinions, the line between freedom of expression and hate speech can sometimes blur. While freedom of expression is a fundamental right enshrined in South Africa’s Constitution which plays an important role in our democratic society, it is not absolute. There are legal boundaries that govern what can be said, especially when it comes to your right to freedom of expression and statements made on social media which do not fall under the protection afforded by the Constitution. In fact, there are three express exclusions to what is covered by your right to freedom of expression, one of which is committing acts amounting to hate speech.


Legal Framework: Freedom of Expression versus Hate Speech

Let’s start with Section 16 of the Constitution, which states the following:

  1. (1) Everyone has the right to freedom of expression, which includes—

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.


However, there are clear exceptions to this right, as recorded in section 16(2):

  1. (2) The right in subsection (1) does not extend to—

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. [own emphasis]


Section 16(2)(c) deals with the exclusion of hate speech from the protections afforded by section 16(1), which is what we focus on in this article.

The Promotion of Equality and Prevention of Unfair Discrimination Act (“PEPUDA”) and the newly assented to Prevention and Combating of Hate Crimes and Hate Speech Bill (“Hate Speech Act”) then builds on that exclusion to lay down the prohibition on the act of hate speech.

PEPUDA prohibits hate speech as follows:

 10(1) …no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to:

  • Be hurtful;
  • Incite harm;
  • Promote or propagate hatred.

The prohibited grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

The Hate Speech Act varies these prohibited grounds by adding albinism; HIV or Aids status; nationality, migrant, refugee or asylum seeker status; and sexual orientation, gender identity or expression or sex characteristics.

The Hate Speech Act also expressly prohibits hate speech being committed via electronic communications through an electronic communications system.

If you express any form of hatred against any person, regardless of the platform, and such hatred is based on these or similar grounds and you do not have a lawful defence (such as artistic creativity), you are overstepping the boundaries of what constitutes freedom of expression.

If you cross the line, you are at risk of civil liability and / or criminal prosecution which includes prison time.


Application to Social Media

Social media platforms have become a breeding ground for hate speech due to their accessibility and anonymity. What many users fail to realize is that the same laws that apply to traditional forms of communication also apply to social media. Users should be aware that deleting a hate speech post does not absolve them of legal liability, as posts can still be traced and used as evidence. Similarly, liking, reposting, sharing, or endorsing an expression amounting to hate speech without explicitly distancing yourself from the content makes you equally liable. This is because you are disseminating and republishing offensive content.



While freedom of expression is a cherished right introduced to South Africans against the historical backdrop of thought control and censorship, it comes with responsibilities. Social media users must exercise caution and respect the legal boundaries when expressing their views online. Hate speech has no place in a democratic society and can have severe legal consequences. By understanding the legalities surrounding hate speech, social media users can contribute to creating a safer and more inclusive online environment.


For more information on hate speech and social media laws in South Africa or legal assistance with social media-related matters, please contact us at DML (0212000770).