Wilson, MargaretHarris, Bede Xavier Peter2026-09-162026-09-161995https://hdl.handle.net/10289/18656The question of what limits should be placed on the right to freedom of expression is among the most intractable in human rights law. The central importance of the free flow of ideas to democracy means that tolerance of opposing views is a necessary precondition of that form of government. Freedom of expression also protects activities such as artistic endeavour, which further individual self-fulfilment. However, the need to protect freedom of expression must be balanced against the need to remedy the emotional harm it can cause. Hate speech (consisting of group defamation and insult) inflicts emotional injury, and thus impairs an important human interest. Some argue that sexually explicit material also has harmful effects. It is with the balance between freedom of expression, on the one hand, and the need to remedy harms, on the other, that this thesis is concerned. The thesis examines the strengths and weaknesses of both the existing approach to freedom of expression, which is founded primarily on the Millian argument from truth-seeking, and the equality-based approach, in terms of which hate speech and pornography are characterised as forms of discrimination. The conclusion reached is that neither strikes a satisfactory balance between expressive rights and other human interests. The suggested alternative is that the concept of human dignity be used both to justify freedom of expression and to set suitable limits to it. Whereas dignity, in the sense of autonomy or privacy, is known to Anglo-American jurisprudence, the concept of an actionable right to remedy offence to dignity is not. Here it is argued that the principles underlying the actio injuriarum of the Roman Dutch law of South Africa would be useful in setting limits to freedom of expression, as the actio provides a civil remedy for impairment of dignity, including impairments taking the form of insult and defamation. The thesis examines the compatibility of the principles of the actio with the interests served by freedom of expression, and concludes that where dignity is impaired by meaningless abuse, liability can be imposed without compromising such values, but that where harm takes the form of derogatory statements of fact, the correct balance between free speech and personality rights requires that the plaintiff bear the burden of proving the falsity of such statements. So far as pornography is concerned, it is suggested that where material depicts harmful conduct in such a manner as to incite those exposed to it to emulate what is depicted, publication should be seen as an impairment of the dignity of the individuals or groups against whom the incitement is directed. Publishers should be held civilly liable to such individuals or groups where it can be shown that the material depicts a combination of sex and violence in such a manner as to incite consumers. In accordance with general principles governing incitement, liability would arise irrespective of whether the incitees acted upon the incitement. However, liability could be imposed only where the conduct depicted was harmful in the sense that it was non-consensual, or was of a type to which the law should not recognise the validity of consent.enAll items in Research Commons are provided for private study and research purposes and are protected by copyright with all rights reserved unless otherwise indicated.Thesis