Free speech vs. hate speech

Cape South African Jewish Board of Deputies vs. Thomas Leyland Torr

We all value free speech. As a nation, we don’t condone hate speech. Section 16 of the Constitution provides the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. However, this freedom is limited and does not extend to incitement of violence or advocacy of hatred based on race, ethnicity, gender or religion. Section 16, along with the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act), prohibits hate speech, which is defined as “an expression which goes beyond mere insults or offensive language, and which may infringe the dignity of certain persons or groups.” 

Landmark judgment

On 09 May, the Cape Town Equality Court handed down a landmark judgment in the case of Cape South African Jewish Board of Deputies vs. Thomas Leyland Torr. This judgment concerned an issue that has arisen with the digital age…online harassment. The court found Thomas Leyland Torr guilty of hate speech under section 10(1) of the Equality Act stemming from antisemitic videos posted on various social media pages.

This matter highlights the Court’s approach to combatting online antisemitism and sets a precedent for tackling hate speech and trolling behaviours including harassment, disclosure of personal information and coordinated attacks taking place on social media. Furthermore, it clarifies the balance between free speech and harmful behaviour. The case illustrates the need for accountability in an age when anonymity is often used to spread hate on global platforms.

The Cape South African Jewish Board of Deputies lodged the case after becoming aware of Torr’s social media posts which contained extreme, vulgar, antisemitic content. The testimony of a media coordinator at the Jewish Board of Deputies as well as an expert on antisemitism was called on to assist the court in understanding the content of the videos in the Jewish context.

Framework

The court cited section 10(1) of the Equality Act, which expressly prohibits the publication, propagation or communication of words based on prohibited grounds (such as race, religion, or ethnicity) that have an intent to cause hurt, harm or promote hatred. The right to freedom of expression is both protected and limited by section 12 of the Act and section 16 of the Constitution. The Court referred to Constitutional Court judgments including SAHRC vs. Masuku (2022) and Qwelane vs. SAHRC (2021) in handing down its judgment.

The Court classified the antisemitic statements in Torr’s videos into four types of accusations against Judaism:

1. Ritual murder and cannibalism 
2. Paedophilia and sexual violence 
3. Inherent violence and barbarism 
4. A lack of creativity, intelligence and humanity 

Torr’s defence that his videos count as protected speech was rejected by the Court, which described his accusations as “nasty, vicious and appalling” with an intent to fuel antisemitism and cause harm. Torr’s use of social media to spread these views brought the challenge of regulating online platforms into sharp relief. 

Torr was ordered to issue a written apology to the local Jewish community and donate an amount of R50,000 to the Cape Town Holocaust and Genocide Centre.

The expert testimony discussed the historical roots of these accusations and stereotypes, which fuel not only antisemitism but violence. By viewing Torr’s actions within the context of online hate, the Court  acknowledged the nuanced challenges in the digital era.

Torr’s videos sought to dehumanise the Jewish community. They also exposed flaws in the social media environment such as algorithms that promote inflammatory content and fail to moderate trolls. The Court’s decision is a reminder to all social media users and content creators of the consequences of spreading systemic hate.

Implications of online hate speech

The judgment shows how Courts can effectively hold people liable for discrimination. It sends a message that posting discriminatory content can and should result in legal consequences. It also highlights problems with the responsibility of digital platforms. The fact that these videos had existed for years indicates inadequate moderation, which allowed Torr to exploit his online identity, spread discriminatory and incorrect information and harass an entire community. Globally, similar challenges exist, with platforms like X being scrutinised for boosting divisive content.

This decision is an important precedent that will encourage more communities and individuals experiencing online hate, discrimination and trolling to speak out. By condemning Torr’s videos, the Court made it clear that hate speech hiding behind digital profiles will not be tolerated. It upheld the constitutional values of dignity, equality and human rights while combatting hate speech. 

Cape Town attorney can help

If you are experiencing harassment, cyber bullying, trolling or hate speech online, we can arrange a protection order against your assailant and help you bring charges if appropriate. Contact Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment. Don’t suffer in silence. As this case proves, the law is there to protect you.

Further reading:

• Cyberbullying – it’s time to fight back
• Cybercrimes Act 2020
• Cyber extortion

SD Law – Simon Dippenaar & Associates Inc.

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