CASE NUMBER: 42/2005 – NIEUWOUDT VS ELECTRONIC MEDIA NETWORK – HATE SPEECH

A complaint was filed against M-Net, the South African subscription broadcaster, about a  programme in which a stand-up comic, Bill Maher, made use of profanity in his  satirical satirical socio-political commentary. The Tribunal held that: When the stand-up comic Bill Maher says that “God is a pr-ck” it would be wrong to judge it literally. He uses the phrase to say exactly the opposite: if an absurd situation, as described by him, were to be true then God would fit that description. The absurdity of the reference neutralizes any possible profanity in the words complained of. Of course, for many viewers, even at that time of the night, any such phrase is offensive. However, the Constitutional Court has held that in some instances freedom of expression includes the right also to utter the offensive. The limit is to be found in cases where the offensive remark is also unreasonable within an open democracy built on freedom, equality and dignity. The programme was flighted at 22:00 and with an age classification of 16. Had the programme been flighted in family time, it would have been much more problematic. In the circumstances we find that the words used did not amount to hate speech as defined in clause 16.3 of the Broadcasting Code. The Tribunal is also of the view that clause 17 saves the remarks, since the  production amounted to a bona fide dramatic performance.The complaint was not upheld.