Japan and the potential for national hate speech legislation: an international consideration on possibilities.

• Published date: 22 March 2017
• Author: Koontz, Nichole
• Date: 22 March 2017

Freedom of speech is considered to be such a fundamental and universal right that it was included in the United Nations Universal Declaration of Human Rights. (1) Free speech is valuable in that it facilitates the open exchange of ideas. (2) With free speech, however, also comes the ability to use speech to harm others, such as through hate speech. Hate speech is defined by Black's Law Dictionary as "[s]peech that carries no meaning other than the expression of hatred for some group, such as a particular race, esp[ecially] in circumstances in which the communication is likely to provoke violence." (3)

Bhikhu Parekh suggests three potential criteria for identifying hate speech that can be used to distinguish it from other forms of speech. First, hate speech is "directed against a specified or easily identifiable individual or... a group of individuals based on an arbitrary and normatively irrelevant feature." (4) Next, "hate speech stigmatizes the target group by implicitly or explicitly ascribing to it qualities widely regarded as highly undesirable." (5) Finally, "because of its negative qualities, the target group is viewed as an undesirable presence and a legitimate object of hostility." (6)

Hate speech could be considered an inevitable consequence of the availability of free speech. One country that has seen a problematic influx of hate speech is Japan.

On May 3, 1947, a new Constitution was enacted for the Japanese government of post-World War II. Under Article 21 of this Japanese Constitution, freedom of expression is guaranteed and formal censorship is prohibited. (7) As a member of the United Nations, Japan may also consider the article on free speech of the United Nations Universal Declaration of Human Rights, though as a declaration its effects are not binding on the state.

Japan has also, however, ratified both the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)--United Nations Conventions. (8) True to its title, the CERD has the lofty goal of seeing racial discrimination eliminated in its signatory countries worldwide. (9) The ICCPR, meanwhile, states that "[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." (10)

Japan, however, made a reservation on Article 4 of the CERD. (11) A reservation, as defined by the Vienna Convention on the Law of Treaties, is "a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." (12)

Article 4 of the convention calls upon states, in short, to criminalize the incitement of racial hatred. (13) By making a reservation on Article 4 of the CERD, Japan expressed its concerns about limitations on freedom of speech as guaranteed under Article 21 of its Constitution. (14) With its reservation to Article 4, Japan continues to be a signatory of the CERD, but specifically opted out of the provision that calls for the criminalization of hate speech. (15) The Japanese government has said that such "actions to spread or promote the idea of racial discrimination have not been taken in Japan to such an extent that legal action is necessary." (16)

Nevertheless, despite the governmental comments suggesting otherwise, Japan has had an ongoing problem with hate speech particularly aimed towards ethnic Koreans living in Japan. Street protests against ethnic Koreans have been on the rise with participants carrying signs reading things such as "Roaches" and "Go back to Korea" and shouting phrases like "Let's kill Koreans!" (17) On August 29, 2014, the United Nations Committee on the Elimination of Racial Discrimination "called on Japan to enact legislation to 'firmly address' growing incidents of hate speech against ethnic Koreans and other minorities." (18) Furthermore, on December 2, 2014, the South Korean Parliament adopted a resolution requesting that Japan "crack down on 'hate speech' demonstrations targeting Korean residents." (19) These incidents show a clear pattern of issues regarding hate speech, particularly against ethnic Koreans, in Japan.

Yet, Japan has not been totally passive on the issue of hate speech. On December 9, 2014, "[t]he top court's Third Petty Bench... rejected an appeal filed by Zainichi Tokken wo Yurusanai Shimin no Kai (Group of citizens who do not tolerate privileges for ethnic Korean residents in Japan)"--a group better known as the Zaitokukai. (20) This appeal followed the Osaka High Court upholding a Kyoto District Court's ruling that ordered the group "to pay about 12 million yen ($100,000) in compensation to a school attended by ethnic Korean children in Kyoto." (21) This ruling on hate speech was made based on the CERD. (22)

Additionally, in May of 2015, a bill sponsored by the Democratic Party of Japan that would prohibit all forms of racial discrimination, including hate speech, was submitted to the Upper House for consideration. (23) This bill, however, would not criminalize hate speech, but merely act as a potential deterrent, thus circumventing arguments that it infringes upon the freedom of expression. (24) This bill, presently, seems to have stalled. (25)

In contrast, an anti-hate speech "naming and shaming" scheme has been established in the Japanese city of Osaka, as it passed an anti-hate speech ordinance. (26) The ordinance established a hate speech examination committee comprised of lawyers and scholars that would examine hate speech complaints lodged by city residents. (27) If the panel determines the incident to be demonstrative of hate speech, the perpetrator and a description of the incident would be posted on the city website. (28) This novel ordinance has shown itself to possibly be effective at a local level. (29) It certainly does not, however, address the issue of hate speech at a national level.

One possibility for quelling the rise of anti-Korean sentiments at a national level is anti-hate speech legislation, like that suggested by the CERD, that would criminalize the incitement of racial hatred rather than simply attempting to deter it. Bhikhu Parekh provides three reasons why a legal prohibition on hate speech is important to society. First, and most obviously, a "direct prohibition would reduce or eliminate speech that causes very real harm to the targets of such speech." (30) Second, a prohibition on hate speech sends a message to the people of a society that "the state values them all equally and is committed to maintaining a civil public discourse and protecting their fundamental interests." (31) Third, and finally, a prohibition on hate speech is vital in "preventing political mobilization of hostility against particular groups." (32)

Of course, anti-hate speech legislation is not without its critics. One criticism of anti-hate speech legislation is that restrictions on free speech can cause people to turn to violence as a method for expressing their feelings. (33) Others still argue that a ban on hate speech will lead to "a chilling effect on public discussion and debate," which will lead to further restrictions still. (34) Bhikhu Parekh argues that this argument "presupposes that an uninhibited freedom of expression is a good thing" and that the slippery slope argument is misleading because human beings make principle-based exceptions all the time. (35)

Another argument is that hate speech is already policed on its own by society; one might argue that, because hate speech is commonly considered undesirable, it is in fact best for those with racially discriminatory views to be as vocal about them as possible because society will produce further speech to make sure that these people's harmful ideas are neutralized. (36) People have therefore found "counterspeech" to be a powerful tool against hateful discourse. (37) Bhikhu Parekh, however, argues that the "counterspeech" argument is exaggerated due to limitations on the approach. Parekh notes that the marketplace of ideas is not neutral, but rather "operates against the background of prevailing prejudices" and therefore can push other ideas out of the way. (38) Furthermore, the marketplace of ideas argument presumes that false ideas will necessarily lose against true ideas. (39)

Finally, free speech is valued and could be called "the lifeblood of democracy." (40) The Japanese constitution guarantees free speech. (41) Parekh, however, argues that instead of considering the issue in abstract terms, one should "ask what sort of liberty... is restricted by a ban on hate speech." (42) Parekh notes that "obscenity, libel, defamation, public display of pornography, and so forth" are banned for being harmful "because we believe that our public life should be guided by certain norms" - norms that could allow for a ban on hate speech. (43)

There are a number of countries today that have anti-hate speech legislation in place particularly for issues of racially-motivated hate speech. (44) It may be beneficial for Japan to look to these countries, which can be divided into four groups - Oceania, Western Europe, Africa, and North America - in considering legislation that focuses specifically on race-based hate speech.

OCEANIA

One such country in the Oceania group is Australia, which is a signatory to the CERD. (45) Although "the Australian Constitution does not expressly mention the freedom of speech, it is well-established as an implied constitutional right." (46) Australia has legislation against hate speech on both federal and state levels. At the federal level, there is the Racial Discrimination Act 1975, which makes it unlawful to publicly "offend, insult, humiliate or intimidate another person or a group of people" for racially-motivated reasons. (47)

There have...