Constitutional law expert Ben Winks says Press Ombudsman Johan Retief missed the mark with his hate speech ruling against the Huffington Post SA.
This comes after Press Ombudsman Johan Retief found that the article was discriminatory and constituted hate speech‚ resulting in editor-in-chief Verashni Pillay's resignation.
The Huffington Post SA's controversial and now deleted blog by a person with a fake identity has caused a great deal of public outcry and critical debate.
The blog called for white men to be disenfranchised and was written by Marius Roodt but submitted under the pseudonym Shelley Garland.
The press ombud also said the editorial processes were lacking and that HuffPost SA should never have published the 'malicious' and 'discriminatory' blog.
Both the ombudsman’s ruling on what constitutes hate speech and Pillay’s resignation have been met with criticism.
Winks says there is a lot confusion around the contents of hate speech due to varying sources that prescribe what it means.
Winks adds that hate speech is not a concept that originates in South Africa but exists in our Constitution as a limitation to the right to freedom of expression.
He explains that the Constitution and the Press Code define hate speech differently.
It's a complicated interpretive exercise.— Ben Winks, Constitutional law expert
According to Winks, the ombud fails to interrogate what is 'discriminatory' or 'denigratory' in his ruling and comes to the ruling without any citation of case law or analysis.
We are left to theorise as to what he understands as 'discriminatory' or 'denigratory'.— Ben Winks, Constitutional law expert
At base, the blog article is saying that white males are disproportionately powerful. That's not a racial caricature... It's not offensive and not untrue.— Ben Winks, Constitutional law expert
On what basis could this be found 'denigratory'?— Ben Winks, Constitutional law expert
Meanwhile, the executive director of the Press Council, Joe Thloloe, has applied for leave to appeal the hate speech ruling against the Huffington Post SA.
Take a listen to his analysis:
This article first appeared on CapeTalk : A law expert on why HuffPost SA didn't deserve Press Ombud's hate speech ruling