On Tuesday parliament’s portfolio committee on communications and digital technologies hosted a roundtable with podcasters and stakeholders on the rapid growth of digital entrepreneurship and how to create a governance framework that protects the public interest, the safety of minors and the integrity of South Africa’s democratic discourse.
Amid the surge in people launching podcasts there have been calls for tighter industry controls, particularly regarding discriminatory and defamatory statements made on platforms.
Podcasts do not fall within the parameters of traditional media, which means they do not need to comply with the legislation that governs traditional forms of media including television, radio and print. However, podcasters do not have a perpetual hall pass when it comes to defamatory content amd hate speech.
Speaking to TshisaLIVE, social media lawyer Verlie Oosthuizen and her associate Unathi Dlamini said podcasters need to be aware of the constitution, the Promotion Of Equality And Prevention Of Unfair Discrimination Act (Pepuda) and the Prevention and Combating of Hate Crimes and Hate Speech Act, all of which are part of the legislation prohibiting hate speech.
Here’s what podcasters should be aware of when it comes to the law:
What are the potential legal consequences for podcasters who make defamatory or hateful statements on their podcasts?
Depending on which legal avenue an aggrieved listener or member of the public decides to follow, a podcaster could face a civil judgment, a judgment for damages or restitution or other remedial action in terms of Pepuda, a criminal sanction or a fine.
How do South African laws define defamation and hate speech, and what are the key factors that determine whether a statement is considered defamatory or hateful?
Hate speech can be defined as expression which goes beyond mere insults or offensive language, and which may infringe the dignity of certain persons or groups. It is speech that:
- negatively impacts the self-worth of victims; and
- deprives victims of their right to dignity and equality
How does the constitution protect freedom of expression, and what limitations can be placed on this right in the context of podcasting?
Freedom of expression is expressly protected in terms of the constitution’s Bill of Rights but it is subject to the limitations clause, which means it is not unfettered and will be subject to a balancing exercise with the rights of the person who is aggrieved by the speech in question. Furthermore, there are specific prohibitions against certain speech, such as hate speech or incitement of war.
Can podcasters rely on the defence of fair comment or freedom of expression in cases where they are accused of defamation or hate speech?
For every right there is a corresponding responsibility. What this means is that rights cannot be abused. The right to freedom of expression is constitutionally provided for, but podcasters cannot use this as a green card to express themselves in a way that is defamatory or advocates for hatred based on race, ethnicity, gender or religion.
How might a court approach a case involving defamation or hate speech on a podcast, and what factors would be considered in determining liability?
To establish defamation, the following elements must be shown:
- the statement made must be false;
- the statement must be published to a third party; and
- the false statement must have caused harm to the reputation of the person or entity it targets.
When dealing with hate speech, one needs to determine whether the speech constitutes advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm
What steps can podcasters take to minimise the risk of legal liability, particularly with regards to defamation and hate speech?
Hate speech will never be allowed and podcasters will never be able to avoid liability if they have engaged in hate speech and they are taken to task. Defamation will require that its essential elements are proved so podcasters should ensure what they are saying is true and in the public interest rather than salacious gossip the public may be interested in.
Are there any best practices or guidelines podcasters can follow to ensure their content is respectful and lawful?
To some extent, there needs to be a common sense approach. If one is intentionally acting in bad faith and looking to trend on social media at the expense of the dignity of others, that will be apparent by their utterances.
With the rise of podcasts in the media space, podcasters have a massive reach and they need to be cognisant about the impact of their utterances — base the utterances on facts and not subjective views that are founded on bias and perpetuate the impairment of dignity of others.
Are there any emerging trends or issues in podcasting that may require changes to the regulatory framework or laws in South Africa?
The podcasting space has not been considered carefully by lawmakers yet and it is a matter of time before this happens and restrictions come into play. Podcasters should ensure they are following the guidance set out above before legislation forces them to and there are statutory penalties.
How might the law evolve to address the challenges and opportunities presented by podcasting, and what implications might this have for podcasters?
The gap in relation to the regulation of podcasts has resulted in the unfettered publication and platforming of content that may be viewed as problematic, and in some instances individuals have taken action against podcasters and instituted proceedings in the courts.
To a large extent, the regulation of podcasts would mean they become part and parcel of traditional media, which is subject to regulation through the Independent Communications Authority of South Africa, Films and Publications Board and the Press Council of South Africa in relation to press media.
Many take issue with podcasts falling under this regulation given that podcasts were intended to be an alternative form of media that was free of the red tape. Ultimately it is up to the policy makers of the country whether podcasts should be regulated. However, given the rise of instances such as Open Chats Podcast, the discussion of regulation will remain a burning issue.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.