Banning hate speech from public discourse in Canada and South Africa: A legal analysis of the roles of both countries’ constitutional courts and human rights institutions

Abstract

It is uncontested that the right to freedom of expression is a fundamental human right that is almost universally recognised as central to any thriving democracy. Yet, in no country is it an absolute right. It is often, therefore, a tricky task to ascertain whether certain forms of expression cross the boundaries of the right to freedom of expression, and whether they cross over into the realm of being unprotected expression, specifically, hate speech. While the right to freedom of expression has been vigorously debated in many countries, scrutinising these forms of allegedly unprotected expression remains a challenge that faces most democracies around the world. In recent years there has been an increasing need to develop guidelines and standards on how one should approach allegations of hate speech.