For the last week and a half, university campuses across South Africa have been rocked by students protesting tuition fee hikes.
Rhodes, Wits, the University Of Cape Town (UCT) and even sleepy Stellenbosch have seen angry demonstrators blockading entrances, stopping fellow students from coming and going and generally disrupting activities on campus. From the sounds of things, students at several more institutions may be about to join the protests in the near future.
Yesterday events took a rather ugly turn when the management at UCT announced that it had applied for and been granted an interdict from the Western Cape High Court, which effectively banned protesting and disrupting campus activity. Leaving aside the fact that the interdict is more likely to anger students than anything else, it includes one factor that makes it seem positively Orwellian.
That was spotted by eagle-eyed legal commentator Pierre De Vos, who pointed out on Twitter that some how or another the High Court had presumed it could interdict a social media hashtag.
The interdict, which is otherwise standard legal fare, contains a list of respondents who are forbidden from protesting at UCT unless they make representation at the High Court for permission to do so. It’s aimed largely at organisations, and includes Sasco UCT, Pasma UCT and UCT Left Movement Students. It also, rather more bizarrely, includes the hashtag students have been using on social media networks to make their concerns and posts searchable: #FEESMUSTFALL.
— Pierre de Vos (@pierredevos) October 19, 2015
While naming #FEESMUSTFALL as a respondent in an interdict may seem absurd and humorous, it’s inclusion may have serious implications for freedom of expression, according to one leading South African academic.
Jane Duncan, Professor of Journalism at the University of Johannesburg, says the inclusion of the hashtag demonstrates a clear misunderstanding of how the internet works, and in its ill-defined breadth could make criminals of anyone who uses it.
“Largely the interdict is focussed on preventing the students from engaging in certain actions, but the inclusion of the hashtag means that it also covers speech too,” says Duncan. “The forms of behaviour that the interdict covers include disrupting or interfering with the normal activities of the university, intimidating, threatening, harassing or harming people on campus, incitement to unlawfully occupy UCT premises and preventing particular individuals from returning to work.”
“This means that anyone using the hashtag and engaging in such speech would be guilty of a crime,” Duncan adds. “If [students] continue to use this hashtag, tweeters could be arrested for violating the interdict, in much the same way that students associated with the interdicted organisations are being at the moment.”
Duncan also points out that the problem is that the prohibited speech in the interdict is far broader than what the constitution deems offensive hate speech.
“A student calling for an entirely peaceful occupation, for example, would be prevented from doing so and using the hashtag to make their tweet searchable,” says Duncan. “Even their support for the student movement could be interpreted as interfering with the normal activities of the university, or intimidating to some.”
“So many of the prohibited behaviours in the interdict are open to subjective interpretation when they relate to speech,” she says.
In other words, if a student uses the hashtag #FEESMUSTFALL in a tweet and a member of UCT’s management feels (or says they feel) threatened or harassed, the tweeter could find themselves in hot water.
Even though the interdiction is strange and potentially unworkable, it’s also got some gaping loopholes. Students could simply change the hashtag – to #FEESMUSTDROP, for example – and the interdict would no longer apply. They could also set up sock-puppet accounts on social media and continue to use the hashtag in safety – what’s more, the anonymity granted by this approach could allow them to use far more threatening speech than they have up until now.
Even though interdicting the hashtag has serious ramifications for freedom of expression, it seems that in doing so, the High Court has laid down a decree that’s pretty much impossible to enforce long term.
“There is something ludicrous about interdicting a hashtag,” says Duncan. “It would appear that the court really doesn’t understand how Twitter works, and the futility of interdicting a hashtag.”