cover image: South Africa the Model? A comparative Analysis of Hate Speech Jurisprudence of South Africa and The

20.500.12592/b9bxsp

South Africa the Model? A comparative Analysis of Hate Speech Jurisprudence of South Africa and The

11 May 2022

SOUTH AFRICA THE MODEL? A COMPARATIVE ANALYSIS OF HATE SPEECH JURISPRUDENCE OF SOUTH AFRICA AND THE EUROPEAN COURT OF HUMAN RIGHTS Jacob Mchangama* & Natalie Alkiviadou** We compare the handling of hate speech by the European Court of Hu- man Rights and the highest courts of South Africa: The latter, it turns out, adopts a more robust and well-articulated approach to the issues of hate speech than. [...] The ECtHR has noted, repeatedly, that the freedom of expression “constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.”43 In the landmark case of Handyside v. [...] “Article 17 was originally included in the Convention in order to prevent the misappropriation of ECHR rights by those with totalitarian aims.”47 Article 17 is intended to make it impossible for individuals to take advan- tage of a right with the aim of promoting ideas contrary to the text and the spirit of the Convention.”48 As noted by the Court in Ždanoka v. [...] France, the concurring opinion of Judge Jambrek attempted to set out the conditions for the application of Article 17, opining that, for this article to be applicable, the aim of the offending actions must be to spread violence or hatred, to resort to illegal or undemocratic methods, to encourage the use of violence, to undermine the nation’s democratic and pluralist political system, or to pursue. [...] The applicant’s display of the poster in his window constituted an act within the meaning of Article 17, which did not, therefore, enjoy the protection of articles 10 or 14.59 As a result of the court’s assessment of the impugned expression, the applica- tion was found to be incompatible ratione materiae with the convention.

Authors

Eugene Volokh

Pages
36
Published in
Denmark