Hate Speech in Asia and Europe: Beyond Hate and Fear [1 ed.] 9780367209001, 9780429264009

Citation preview

i

Hate Speech in Asia and Europe

This edited collection provides a timely review of the current state of hate speech research in Asia and Europe, through the comparative examples of Korea, Japan and France. Extending the study of hate speech studies beyond the largely western emphasis on European and US contexts dominant in the field, this book’s comparative framework aims to examine hate speech as a global phenomenon spanning Asian and European contexts. An innovative range of nuanced empirical case studies explores hate speech by analyzing gendered hate speech and nationality, French cartoon humour, official counter-radicalization narratives and the use of international law to inform domestic legislation in the Philippines and Japan. A fresh perspective on Asian and European hate speech, this book’s evaluation of current hate speech research also identifies future directions for the development of theory and method. Filling a critical gap in the literature, Hate Speech in Asia and Europe will appeal to students and scholars of law, politics, religion, history, social policy and social science more broadly, as well as Asian Studies. Myungkoo Kang teaches media and cultural studies at the Seoul National University, Korea. Marie-Orange Rivé-Lasan is an associate professor at Paris Diderot University, France, teaching Korean contemporary history in the East Asian Languages and Civilisations Department. Wooja Kim is an associate professor at the College of International Relations at Ritsumeikan University, Japan. Philippa Hall is an independent writer and researcher whose interests include social policy, legal reform, political economy and mass media policy. Sojeong Park is a Ph.D. candidate in the Department of Communication at Seoul National University.

Routledge Contemporary Asia Series

Middle Class, Civil Society and Democracy in Asia Edited by Hsin-Huang Michael Hsiao Conflict in India and China’s Contested Borderlands A Comparative Study Kunal Mukherjee Transcontinental Silk Road Strategies Comparing China, Japan and South Korea in Uzbekistan Timur Dadabev Sino-Pakistani Relations Politics, Military and Regional Dynamics Filippo Boni Circulation and Governance of Asian Medicine Edited by Céline Coderey and Laurent Pordié Normalization of Violence Conceptual Analysis and Reflections from Asia Edited by Irm Haleem Minorities, Rights and the Law in Malaysia The Politico-Legal Mobilisation of Ethnic Minorities Thaatchaayini Kananatu Hate Speech in Asia and Europe Beyond Hate and Fear Edited by Myungkoo Kang, Marie-Orange Rivé-Lasan, Wooja Kim and Philippa Hall For more information about this series, please visit: www.routledge.com/RoutledgeContemporary-Asia-Series/book-series/SE0794

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Hate Speech in Asia and Europe Beyond Hate and Fear

Edited by Myungkoo Kang, Marie-Orange Rivé-Lasan, Wooja Kim and Philippa Hall In association with Sojeong Park

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Myungkoo Kang, Marie-Orange RivéLasan, Wooja Kim and Philippa Hall; individual chapters, the contributors The right of Myungkoo Kang, Marie-Orange Rivé-Lasan, Wooja Kim and Philippa Hall to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-20900-1 (hbk) ISBN: 978-0-429-26400-9 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

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Contents

List of figures and tables List of contributors 1 Introduction: how would Asia and Europe go beyond the hate speech?

vii viii

1

MYUNGKOO KANG

SECTION 1

Current state of hate speech

5

2 Meta-analysis on hate speech studies in South Korea

7

MYUNGKOO KANG, JAEJIN LEE AND SOJEONG PARK

3 Hate speech in Japan: Patriotic women, nation and love of country

23

JACKIE J. KIM-WACHUTKA

4 Banal misogyny: inventing the myth of “women cannot drive” and its online hate speech in South Korea

43

HYOJIN JEONG AND YOUNGHAN CHO

5 Caricature as a form of hate speech? the example of the diffusion of French “atomic humour” in Japan

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TINO BRUNO

6 Hate and threat in French jihadist discourse LAURA ASCONE

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vi Contents

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SECTION 2

Countering and reforming hate speech 7 Dialogues and diversity in Korea, Japan and France: the contribution of international law to hate speech legislation in national and transnational contexts

93

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PHILIPPA HALL

8 When hate becomes illegal: legislation processes of the anti-hate speech law in Japan

112

NAOTO HIGUCHI

9 Free marketplace of ideas: applying the approach of the UN Human Rights Committee and the European Court of Human Rights in Philippine internet hate speech cases

127

GEMMO BAUTISTA FERNANDEZ

10 Can strategic human rights litigation complement social movements? a case study of the movement against racism and hate speech in Japan

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AYAKO HATANO

Index

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Figures and tables

Figures 8.1 Frequency of searching for Zaitokukai and hate speech 8.2 Frequency of hate speech appearing in newspapers and parliamentary debates 8.3 Proportion of hate speech-related articles referring to “freedom of speech” 8.4 Opinions of lower house members during 2014 election campaign 10.1 The number of hate speech news in mass media in Japan 10.2 The number of hate-related demonstrations

116 117 121 123 162 167

Tables 2.1 2.2 4.1 5.1 5.2 6.1 8.1 8.2 8.3 8.4 10.1

Academic research on hate speech in Korea 1999–2017 Definitions of hate speech Wrong-way driving accident reports Quantitative analysis Qualitative analysis Frequency of the different types of threat and of their structures in Dar al-Islam Stages of policy processes towards the Anti-Hate Speech Act Frequency of appearance of certain terms in hate speech-related articles Frequency of appearance of civic organizations on hate speech-related articles Numbers of questions and proposals related to hate speech Effects of litigation strategies on social movements

9 12 52 66 67 82 114 119 120 120 157

Contributors

Laura Ascone earned a PhD in linguistics at Université Paris Seine (France). Her thesis is on the rhetorical strategies used in both jihadist propaganda and counter-narrative. She currently conducts a post-doctoral research on the hate speech against migrants at Université de Lorraine (France). Her researches focus on computer-mediated communication, on the expression of emotions, on the jihadist radicalization process and on the hate speech against migrants. Tino Bruno is Lecturer at Kanagawa University in Yokohama (Japan). He presented in 2017 a PhD thesis in the field of Japanese studies (Lyon 3 University) focussing on the medial image of nuclear energy in the Japanese daily press from 1945 to 1957. His publications include topics such as the international media coverage of the Fukushima nuclear accident or of the Japanese anti-nuclear demonstrations, and the reception of French humour on atomic energy in the Japanese media. Younghan Cho is Professor in the Department of Korean Studies at Hankuk University of Foreign Studies, Seoul, Korea. His research interests include media and cultural studies, global sports and nationalism, East Asian pop culture and modernity and cultural economy in Korean and Asian contexts. He is the co-editor of many special issues including Glocalization of Sports in Asia, Colonial Modernity and Beyond and American Pop Culture. He edited books entitled Football in Asia: History, Culture and Business and Modern Sports in Asia (Routledge, 2014), and is a member of the editorial board of Cultural Studies and Communication & Sport. Gemmo Bautista Fernandez is a doctoral candidate at the Australian National University. He obtained his Master of Laws degree from the University of Sydney; Juris Doctor from the University of the Philippines; and his Bachelor of Science degree in applied mathematics from the Ateneo de Manila University. He is a member of the Philippine bar and practises law in the following fields: civil litigation, cybercrime and data privacy protection. His research, the subject of his doctoral dissertation delves into the implementation of communitarian norms, theories surrounding the codification of relevant provisions

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Contributors

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in articles of state responsibility, and the examination of the attendant state practice. His other research interests include the effects of derogation and limitation clauses in human rights treaties; the rules of armed conflicts conducted in outer space; and the regulation of online hate speech. Philippa Hall is an independent writer and researcher whose interests include social policy, legal reform, political economy and mass media policy. Several of these research themes have been examined within the context of the history, politics and implementation of neoliberal policy. She has written a range of reviews, book chapters and journal articles. Her recent research on hate speech and social policy includes ‘Disability Hate Speech: Interrogating the Online/Offline Distinction’ published in Online Othering: Exploring Digital Violence and Discrimination on the Web (2019). Her current research focuses on international law and social policy, hate speech and media culture. Ayako Hatano (JD, MA, LLM) is a doctoral researcher at the University of Tokyo, with research interests in internalization of international laws and norms in local contexts with a focus on human rights, development and gender. She has been granted numerous awards and grants including the Global Justice Emerging Scholar Essay Prize at New York University, the East Asian Law and Society Paper Award and Fulbright scholarship. She was International Law and Human Rights Fellow at the UN International Law Commission, a visiting scholar at the US-Asia Law Institute at New York University and a fellow at the Asia Leadership Fellow Program at the International House of Japan. She has also been engaged in the implementation of international law and legal research both within government and in international organizations. Naoto Higuchi is an associate professor at Tokushima University. Naoto’s underlying research interest lies in xenophobia, social movements and social capital of migrants. He conducted a fieldwork on radical right activists and is now engaged in research on Peruvian migration to Japan. His recent research outputs in English language on the rise of new radical right groups in Japan include: Japan’s Ultra Right (Trans Pacific Press, 2016) as well as “The Radical Right in Japan”, in The Oxford Handbook of the Radical Right, edited by Jens Rydgren (Oxford University Press, 2018). Hyojin Jeong is a PhD student at the department of Korean Studies at Hankuk University of Foreign Studies (Seoul, South Korea, hereafter HUFS). She received her master’s degree at the department of Korean Language and Literature at Yonsei University, with her thesis entitled “A Study on Terms of Address with ‘ssi’ in Context: Based on a Questionnaire Survey,” Her research interests include language and gender in Korean media, culture and law. Her latest speech in a conference was about abortion prohibition laws in South Korea. She has taught Korean language at several institutions such as Wellesely, MIT (2013–2014), Namseoul University (2015) and HUFS (2016).

x Contributors

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Myungkoo Kang has been teaching media and cultural studies at the Seoul National University since 1987. He served as the Director of Asia Center from 2016 to 2017 and the Dean, College of Liberal Studies, Seoul National University. He teaches media and cultural studies and social history of media technology. He has published a book, Human and Enlightenment: A Historical Formation of Public Sphere in Korea. He has been leading two research teams on “De-demonizing North Korea: An International Comparison” and “Korean Firms Went to China: A Cultural History of Korean Investment,” Wooja Kim is an associate professor in the College of International Relations at Ritsumeikan University. She is also involved in two campus-wide committees including the management committee of Ritsumeikan Center for Korean Studies (RiCKS) and the research project in gender studies at the International Institute of Language and Culture Studies. Her research focuses on ethnic/ national identity among Korean minorities scattered in the world including Zainichi Koreans and their history. She explores how their identities are shaped by taking a close look at the interaction between expatriate Koreans and Korea as their homeland. She is currently working on identity politics and intersectional discrimination against Zainichi Korean Women. Jackie J. Kim-Wachutka, PhD, teaches at Ritsumeikan University. She has published two monographs: Zainichi Korean Women in Japan: Voices (Routledge, 2019) and Hidden Treasures: Lives of First-Generation Korean Women in Japan (Rowman & Littlefield, 2005). Her latest articles and book chapters are “When Women Perform Hate Speech: Gender, Patriotism, and Social Empowerment in Japan” (Asia Pacific Journal: Japan Focus, 2019) and “Bones to Pick: Nationalism Beyond the Grave” (Iudicium, 2018). She is currently conducting two research projects: Japan’s multi-ethnic aging and care for an increasing number of foreign senior residents and women’s performativity of patriotism and feminized hate speech. Jaejin Lee is a professor at Hanyang University, Seoul, Korea. His research interests include media law, ethics and policy as well as journalism. He received a BA degree from Seoul National University; an MA, University of Iowa; and PhD, Southern Illinois University. He published more than 100 research articles and more than 20 books and book chapters including a book titled The Press and the Public Figure in which he explored how the conflicts between the press freedom and the personal rights of the public figure are resolved in the area of libel law. He is now working as Commissioner at the Korea Press Arbitration Commission. He served as President of the Korean Society for Journalism & Communication Studies from October 2018 to October 2019. Sojeong Park is a PhD candidate of the Department of Communication at Seoul National University. Her research interests include a variety of media culture and visual culture with focus on representation, identity, body and trans-Asian culture. She received a master’s degree at the same department, with her

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Contributors

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dissertation entitled “Romantic Relationship in the Neoliberal Korean Society: Representation of Romantic Relationship in Korean Romantic Comedy Movies since 2008.” Her research has been published in The Journal of Popular Culture, Korea Journal and a variety of Korean refereed journals. In her current research, she examines on the matter of whiteness in Korean beauty and racial discourse. Marie-Orange Rivé-Lasan is an assistant professor at Paris Diderot University (Sorbonne Paris Cité) teaching Korean contemporary history at both undergraduate and graduate levels in the East Asia Language and Civilization Department (UFR LCAO), and a member of the Korean Studies Center (CRC) of the China, Korea, Japan Laboratory (UMR 8173 CCJ-CNRS-EHESS-UPD). She conducts her research in the field of contemporary social history about South Korean elite networks and power transmission, particularly among the families originating from the northern part of the Korean peninsula, about anarchists and socialists political actors in the twentieth century and also about the “places of memory” concerning contemporary history in physical areas (like Pyeongyang or Sokch’o) or in cyberspace.

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Introduction How would Asia and Europe go beyond the hate speech? Myungkoo Kang

There is an East Asian proverb, “Just like mushrooms sprouting after the rain,” Just as the poisonous mushrooms sprouting in the forest shortly after the rain, populism and hate speech have been sprouting all over the world. For the last 30 years, populism has been a mechanism of discourse that has encouraged globalization and neoliberal capitalism at the worldwide level. Along with this, hate speech has provided fertile soil for those who have been marginalized and otherized by neoliberal capitalism to victimize others and instigate the hatred within and between different groups. If neoliberal capitalism and populism are the moist soil after rain, hate speech is a poisonous mushroom that feeds on the moisture in the forest A poisonous mushroom does not mark itself as poisonous. To lure its prey, it boasts of more beautiful colours and forms than any other beneficial mushroom does. While many herbivores are aware of the dangers of the poisonous mushroom and avoid it, young animals and some hungry ones become fatally ill from eating it. Most animals get to know the danger of poisonous mushrooms through learning (from their parents) and experiences (of friends’ death and suffering). Perhaps it took several centuries for the animals to distinguish between poisonous and beneficial mushrooms. Likewise, hate speech does not always reveal itself in the form of obvious hatred. In fact, hate is considered an important mechanism that protects one’s identity or realm from the other. Hate has served as a significant mechanism to counter threats that disturb the system of identity and violate its boundaries, thereby contributing to sustain the community. However, it leads to alienation of the other, destruction of humanity and demoralization of the society (Kristeva, 1982; Nussbaum, 2004). In a global networked era where boundaries become indistinct and social uncertainty increases, hate is quite easily and negatively mobilized under the pretext that the conventional system should be protected. And hate speech manifests itself as beneficial mushrooms by conciliating people, resorting to conservative values systems, creating fake news and monsterizing the other. With the recognition of the substantial growth of hate speech in Asia and Europe and its growing devastating effects, this volume collects various cases on different subjects who produce hate speech and those who are victimized

2 Myungkoo Kang

2

and suffered from it. In particular, since there were not many reflections nor empirical data on to what extent and in what forms the poisonous mushrooms of hate speech are grown, we have attempted to look into concrete cases on hate speech in each country, the policy approach to regulate and incapacitate it and cultural resistance against it. In the case of Europe, many pieces of research have been accumulated on the hate speech phenomenon and its regulation debate in various countries, but there have been few opportunities to gather those researches in one place. Furthermore, there has been no attempt on a comparative approach to Asia and Europe. As can be seen from each chapter in this volume, a significant trend in hate speech studies is towards case studies on specific hate speech incidents, its progress and effects. Both in Asia and Europe, hate speech concerning race, religion, gender, ethnicity and sexuality is becoming a social problem. The second trend is the analysis of different institutional, political, legal, ethical and philosophical perspectives on how to regulate hate speech in various countries. There have been abundant researches that explicate and compare the philosophy and judicial precedents regarding hate speech regulation in North America and Europe. This volume aims to provide a comparative point of view on Asian and European cases, if not to make an accurate comparison between them. Thirdly, what is noticeable in the researches included in this volume is that online hate speech and its regulation is an important issue that calls for scholarly attention. It brings up the longstanding debate on regulation and freedom of speech and places in the online context. In Asia, research on hate speech is now at the beginning stage while European researches turn their attention to newly developing phenomenon such as online hate speech and hate speech based on ethnicities or religions that are manifested from terrorism and refugees. With the publication of this volume, we would like to share various hate speech cases in different Asian and European countries and elucidate the historical, cultural and socio-psychological soil on which hate speech grows just as poisonous mushrooms sprouting after rain. Our contributors delve into each countries’ hate speech cases and question the mechanisms of these destructive behaviours and speeches. Japanese society, with the rising of ultra-nationalist groups, is witnessing the hate speech against Zainichi Koreans, and Korean society is suffering from hate speech targeting women, migrants and sexual minorities. European societies are facing extreme Islamophobic attitudes after a series of terrorism and refugee issues. The academic approach to interpret these phenomena is rooted in the critical anger regarding the current state. Along with the critical anger, the chapters provide rational assessments on each hate speech incident and claim that to prevent hate speech, it is never enough to merely criticize certain individuals or groups that utter it. Each chapter clearly presents or alludes to its own answer on how to counter hate speech. Through the different cases in Asia and Europe, each chapter questions why such destructive behaviours are expressed and why hate speech perpetrators manifest their hatred against others without any sense of guilt and without any

3

Introduction 3

reflection on the destructive effect triggered by their speech. All the questions and discussions in each chapter show the future direction of hate speech studies. And we will find out that the future direction for hate speech studies does not necessarily mean support for freedom of speech or strict regulation on hate speech. It’s when we give more critical attention to other important values such as human rights and dignity, care, tolerance, respect and recognition and discuss these keywords in terms of their philosophical and institutional base – which will be explored in our next forthcoming volume – that we can shake off the fetters of hate speech. These keywords lead us to the accumulated philosophical discussion on ethical and moral attitude to recognize and respect the difference of skin colour, religious belief and sexuality. These keywords can work as attitudes or dispositions on the individual level, as normative principles on the ethical level and as collective practices and institutional regime on the societal level, just as human rights have progressed. These keywords always need to be well considered when criticizing hate speech and discussing regulation tactics. This volume consists of two sections. The first half aims to examine the current state of hate speech in Korea, Japan and France. Myungkoo Kang, Jaejin Lee and Sojeong Park provide us the contour of hate speech studies in South Korea. Their meta-analytical view shows that Korean hate speech studies is recently growing both in quantity and thematic diversity. Other chapters explore through the case studies how hate speech is produced in particular social contexts. Hyojin Jeong and Younghan Cho examine the construction of misogynistic discourse in South Korea. What is notable in their perspective is that they aim to illuminate “routine, prosaic, dull and unremarkable” aspects of hate speech against women, which they refer to as “banal misogyny,” The chapter provides critical insight on how the habitual representation of media victimizes the women. On the other hand, in Jackie Kim-Wachutka’s chapter, women are not merely positioned as the victims of hate speech. She gives much attention to the Japanese women who openly perform hate speech against social minorities in the name of love of country and how these women gain legitimate empowerment through their performance. With the intersectional approach, the chapter clarifies the intricate connection of gender, race and nation in the realm of hate speech. Laura Ascone and Tino Bruno delve into French cases. In recognition of the increasing threat of terrorism, Laura Ascone investigates the rhetorical strategies used by the Islamic State. The linguistic analysis carried out with the use of the software Tropes reveals the double effect of hate speech which threatens the enemy and persuades the jihadist sympathizers. By examining how the different threats can be expressed in different ways, Laura Ascone calls for the necessity to consider the social context in which hate speech is formulated. And this necessity is well addressed in Tino Bruno’s chapter. He attempts to explicate how a joke in certain society can be considered as hate speech in another sociohistorical context, through the case of French caricature on the atomic disaster in Japan. This study leads us to reflect on the frontier between humour and hate speech, and also on the formulation of hate speech in the international setting.

4 Myungkoo Kang

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The focus of the second half is how hate speech can be countered by the interaction of social movements and international law. Philippa Hall, Gemmo Bautista Fernandez, Naoto Higuchi and Ayako Hatano each engage with different national context, but they all give attention to different actors involved in policy making or legislation process and consider international law as a crucial legal resource that can assist social movements on the national level to counter hate speech. In particular, Hall underscores the intensification of neoliberal globalization and dwindling of the public sphere as the remarkable context of hate speech in Korea, Japan and France. Under such circumstance, the debate between hate speech regulation and freedom of speech, which is affected by not only regional specificities but also international law, becomes more prominent in each society. The debate between regulation and freedom of speech is an essential issue in Fernandez’s reflection on the Philippine case as well. While the legal approach to Philippine online hate speech assumes the US model which is in favour of the freedom of right, Fernandez supports the application of the ECtHR and UNHRC for a more balanced consideration of two rights. Higuchi and Hatano give insights on legislation process anti-hate-speech law based on their analysis of the recent enactment of the Anti-Hate Speech Act in Japan. Higuchi, finding an answer to how the Anti-Hate Speech Act could be enacted so quickly and tracing the legislation process phase by phase, observes that “different actors related a baton from civil society to the core of ruling coalition,” Meanwhile, Hatano’s chapter interprets the same legislation process as a case that successfully vernacularizes the universal human rights ideology into the local context. In the Kyoto Korean School case which led to the enactment of first anti-hate speech law in Japan, international human rights conventions played a key role to transform the individual or local issue into universal social justice movement. There is no royal road to extirpating hate speech. Just as hate speech is produced in certain a sociohistorical context, the contextual approach should be discussed. In this sense, various observations and perspectives on different cases in different countries can provide insights into how to counter hate speech. This volume is generated out of the international workshop titled “Beyond Hate & Fear: How Do Asia and Europe Deal with Hate Speech?” held at Kyoto in 2018. It is time for us to go beyond hate and fear, and we hope this volume can contribute as a substantial academic attempt.

References Kristeva, J. (1982). Powers of Horror: An Essay on Abjection. New York, NY: Columbia University Press. Nussbaum, M. C. (2004). Hiding From Humanity: Disgust, Shame and the Law. Princeton, NJ: Princeton University Press.

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Section 1

Current state of hate speech

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2

Meta-analysis on hate speech studies in South Korea Myungkoo Kang, Jaejin Lee and Sojeong Park

Introduction From the 2000s, hate and discrimination against groups such as foreigners, refugees, immigrants and sexual minorities have been spread through the internet all over the world. In the case of Europe, the increase in discrimination against refugees, immigrants and Muslim minorities and the consequent rise of hate speech has brought about problems of social unity and human rights. The term “hate speech” has been used by scholars in existing research, but there is not yet a general consensus on what exactly it refers to. Nonetheless, Anne Weber from Council of Europe states in her Manual of Hate Speech that “hate speech” refers to the following: 1) the act of inciting racial hate or hate speech to an individual or group on the basis of their race, 2) the act of inciting hate based on religion (which can be considered to be equivalent to the incitement of hate based on the discrimination of believers and non-believers) and 3) the use of expressions that incite other forms of hate that are founded on intolerance that is “expressed by aggressive nationalism and ethnocentrism” (Weber, 2009). Hate speech has emerged in almost all nations as a social problem with the development of the internet and of social media. The hate speech of a nation reflects its social and historical context. For instance, racial discrimination in the US stems from its history of slavery and its unique character as a country composed of immigrants. On the other hand, the main target of hate speech in Japan is Korean immigrants, which indicates that at the root of this problem is the international relations of East Asian countries and the issue of history, more specifically the Japanese colonial rule of Korea and the post-liberation relationship of the two countries. Likewise, hate speech in Korea is different in its character from that of other nations. In Korea, the main instances of hate speech are hate between social classes, flaming against “Jongbuk (Pro-North Korean forces),” and hate speech directed towards women and sexual minorities, recently made more visible by what is called the “Ilbe phenomenon.” The severity of the problem of hate speech in Korea is apparent in the “Research on Hate-speech in Korea and Measures for Regulation” project presented by the National Human Rights Commission of the Republic of Korea on February 19, 2016. This research, through a

8 Myungkoo Kang, Jaejin Lee and Sojeong Park

8

survey on online and offline hate speech, shows that minority groups that experience stigmatization and prejudice through hate speech experience psychological pain such as stress and depression to such a significant degree that it affects their everyday lives. That more than 50% of sexual minorities, physically disabled individuals, immigrants and women answered that they experience anxiety in their daily lives due to hate speech clearly indicates that hate speech is not a problem to be taken lightly. Moreover, hate speech is becoming a more prominent phenomenon of negative communication not only on the level of individuals or certain minority groups, but in general society. Hate speech includes not only instances that are directly harmful to socially marginalized individuals but also the incitement to hatred in third-party individuals, and the incitement to hatred is likely to develop into group hate crime. Based on such a recognition of the severity of this problem, this research approaches the past 20 years of research on hate speech in Korea from a metaanalytical perspective and analyzes their tendencies and characteristics so as to navigate the landscape of academic discourse on hate speech. It is only recently that social attention has been turned to the issue of hate speech, but there has consistently been research on hate speech in the academic field, albeit in the form of introducing and translating foreign research on hate speech. Looking into what perspectives and approaches these researches take with regard to the problem of hate speech and what kind of stance they express, it will be possible to survey how hate speech has been perceived in Korea and to discuss the direction academia and society should move towards in the future. Moreover, this overview will also add to the depth of the discussion on the levels of regulation that should be imposed on the hate speech that stems from the unique social environment of Korea.

The beginning and development of hate speech research in Korea Overall characteristics The overall state of research on hate speech published in professional journals from 1999, when the first research on hate speech in Korea was published, to 2017 can be seen in Table 2.1. As can be seen in Table 1, the most noteworthy results of this overview of researches covering the time period from 1999 to 2017 are the following. First of all is the fact that while there has not yet been very much professional research, over 60% of the existing research is composed of researches that approach the problem from a legal perspective. With the next most common approaches being from the fields of communication and sociology, there seems to be a need for more diverse approaches and studies of hate speech in the future. In other words, these results could be said to reflect the fact that in Korea, discourse

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Sum

Year

13

1 1 4 3

1

1 1

1

International Law

Law

1 6 5 1 17

1

1

1

1

Constitution

15

4 2 5

1 1

1

1

Criminal Law

4 5 2 11

Communication

Table 2.1 Academic research on hate speech in Korea 1999–2017

2

1 1

Sociology

1

1

Politics

1

1

History

1

1

Linguistics

1

1

Others

1 1 0 2 1 2 0 0 1 0 1 0 1 2 1 7 18 21 3 62

Total

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10

Myungkoo Kang, Jaejin Lee and Sojeong Park

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on hate speech centres more around issues of “regulation” than it does around “causes and historical background or actual victims.” Secondly, it is only recently that hate speech started to be treated as a significant topic of academic research. Research on hate speech began when Jaejin Lee introduced hate speech as a legal phenomenon in his research “A Legislative Analysis of the Phenomenon of Hate Press,” published in 1999 in the Journal for Communication Research issued by the Center for Communication Research at Hanyang University. Analyzing the debate on the legal regulation of hate speech in the US as well as relevant judicial cases, the study details the American solution to hate speech. In the following 20 years, there have consistently been 0–2 studies on hate speech every year just in the legal field, until in 2016 many different fields showed particularly active research. With seven studies in 2014, 18 in 2015, 18 in 2016, and three up to May 2017 (the time of this writing), there has been more than three times more research in the recent four years (total 42) than in the past 15 years (total 13). It can be surmised that the reason for this recent rise in research is the fact that hate speech has not been perceived as a serious social agenda in Korean society in the past. That is to say, while legal interpretation of hate speech, the analysis of its regulation and online hate speech has been the topic of research since the 2000s (Lee, 2000; Cho, 2002a; Shim, 2007, etc.), it is relatively recently that hate speech has emerged as a serious social problem in Korean society. This result corresponds to current trends such as rise of Ilbe as an important issue in Korean society and the increase in legal conflicts such as defamation lawsuits provoked by online hate speech and/or the use of similar expressions. It seems that Korea’s social environment, which is not so sensitive to personal harm caused by hate speech with its tendency to cover up or condone such speech, has also influenced this trend. More recently, however, crimes against women have been connected to public discourse on misogyny, and problems of human rights experienced by illegal immigrants and marriage to immigrant women in Korea have been raised continuously. It is thus possible to see that the attention that society and academia has recently started to pay towards the issue of hate speech is a result of social discourse on hate speech having developed to the point of recognizing the need to address the problem. Third, there has been quite active publication of research reports that are not academic research papers, from organizations involved in the regulation of hate speech, such as the National Assembly Research Service, the National Human Rights Commission of the Republic of Korea and the Korean Communication Standards Commission. These reports usually provide an overview of existing researches as well as an analysis of the hate speech phenomena in the US, Europe and Japan. They also include suggestions on what direction to take in future legislation. Fourth, hate crime has also become a topic of research in degree theses. In 2009, it became the topic of a master’s thesis, and seven years later in 2016, it appeared as the topic of a doctoral thesis. There are a total of ten degree

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theses, six of which are related to the legal field and four of which are on nonlegal topics. Fifth, there have not yet been any empirical studies that conduct nationwide research on real victims of hate speech to look into how hate speech is actually influencing Korean society. Comparative studies analyzing the hate speech of Korea and of other nations have not been conducted yet either save for in the field of comparative law. The term “hate speech” and its definitions There has not yet been any consensus on what is the most appropriate way to translate the English term “hate speech” into Korean. The difficulty of this translation may be due to the fact that the historical, experiential and social context of “hate” is different for each country. There is also no single understanding of the concept of “speech.” To those who are oppressed and not given the right to express their opinions, the term “press” would be appropriate; however, as people are given more freedom of expression, the term “speech” (표현) is coming to be considered more appropriate than “press” (언론). For these reasons, there has been no single term researchers use to refer to hate speech in Korean. In Lee (1999), the first research on hate speech in Korea, the term is translated as “hate press” (혐오 언론). However, Cho (2002a, 2002b, 2015) refers to it as “antagonistic acts of speech” (적의적 표현 행위), Choi (2015) as “hate utterance” (혐오 언설), Bae (2015) and Oh (2016) as “hatred statement” (증오 발언), Park (2014) and Jeon (2016) as “hatred speech” (증오 표현), Park (2003) as “hatred speech press” (증오 표현 언론) and Shim (2007) as “hatred press” (증오 언론). Recently, Kim et al. (2012), J. Lee (2014), Moon (2017), Lee (2015a), Hong (2015; 2016), Lee (2016a, 2016b), Noh and Ko (2016), Cho (2016), Park (2016), Lee (2016) and Hong and Na (2016) have chosen to use the term “hate speech”(혐오 표현). While there is no clear Korean translation for “hate speech”, in 2015–6, the time period during which there has been the most active research on hate speech, most researches chose to use the term “hate speech” (혐오 표현). Accordingly, this research also uses the term “hate speech” (혐오표현). In a similar context as the lack of unity in the term’s translation is the fact that the definition of the term “hate speech” has not been very consistent. Many researchers have attempted to define or conceptualize hate speech, and an overview of these definitions is provided in Table 2.2. Hate speech can be defined differently according to the historical, experiential and socio-cultural context of each nation. Accordingly, recent researches show a tendency of pointing out that hate speech is understood in various ways in particular historical, experiential and socio-cultural contexts rather than attempting to clearly define the concept. To conceptualize “hate speech” based on Table 2.2, it is possible to categorize its meaning according to its traditional aspects (history, religion and race) and modern aspects (ethnicity, gender and minorities), and according to whether it refers to a narrower range of acts with substantial

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Table 2.2 Definitions of hate speech Researcher (Publication Definition Year) Lee (1999, 2000)

Cho (2002a, 2002b)

Park (2003)

Shim (2007) J. Lee (2014)

Park (2014) Choi (2015)

Kim (2016)

Lee (2016c)

Unrestrained, aggressive and demeaning speech that incites hate, violence, or discrimination based on race or ethnicity, religion and sexual orientation Aggressive and racially discriminatory speech that has the antagonistic intention of attacking marginalized groups such as women, lesbians and gays, or individuals based on their race, ethnicity and religion Press that incites and inspires hate grounded on race, religion, ethnicity, or ethnical background, or oppressive and vulgar speech expressing hate Pejorative speech that is biased towards certain races, genders, or religions Acts of speech that not only overtly reveal inner hate towards a particular target but also express discriminatory sentiment towards the groups with which the target is affiliated Speech expressing hate based on race, ethnicity, religion, gender and etc. All forms of speech inciting violence, hate, or discrimination with the intention of harming, threatening, or insulting particular individuals or groups Acts of attacking the identity of minority groups that have been historically and socially subject to oppression and discrimination Acts that target minority groups which have experienced continuous and consistent systematic, structural and everyday discrimination through negative stereotyping and prejudice rooted in historical context

negative influence or to a broader range of acts with a smaller practical effect. Hate speech in Korea can be understood to have more to do with the modern aspects of hate speech and with its broader meaning. The development of research on hate speech Early research on hate speech in Korea mostly consisted of studies quoting or referencing definitions stated in foreign researches. Discourse on hate speech in Korea later became more active, and this development can be understood in connection to three particular background circumstances. First is the large increase in the number of foreigners in Korea due to the trends of internationalization and globalization, and in particular the increase of permanent residents who reside in Korea for marital or occupational reasons. As this increase occurred, researches on hate speech started to become more systematic, because as the crime rate of

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illegal immigrants in Korea rose and their illegal or law-evading acts came to be publicized through the media, negative expressions of opinions held by Korean nationals towards such groups started to emerge as a socio-cultural problem. Another reason for the development of research on hate speech approaching the issue from various legal, cultural, historical and ideological approaches can be said to be the problematization of hate against the Honam region, women and foreigners in 2013, a particularly noteworthy agent of which is the internet community “Ilbe (Daily Best)” (Hong, 2016). Many researches approach from various perspectives the question of how hate speech is spread in online communities (Kim, 2014; Song, 2016), and in particular, there have been several studies that take a cultural approach or a feminist approach in relation to the issue of misogyny (Kim, 2015; Kim & Kim, 2016; Sohn, 2015; Um, 2016). Lastly is the emergence of socio-cultural conflict on issues such as the increasing gap between social classes. The “Hell-Joseon discourse,” which has gained much public interest in recent years, is a discourse reflecting the socioeconomic conditions in Korean society which have made it more difficult to move between social classes. Through the “Spoon Class Theory,” a theory expressing the impossibility of communication or movement between the social classes of “gold spoon,” composed of those who inherit wealth, and “dirt spoon,” who inherit poverty, the conflict between social classes in Korea is gaining popular recognition. Following the increase in the visibility of these discourses, hate has come to be perceived as a dominant affect in Korean society, and much research has been produced with this understanding in mind. Through such circumstances, interest in and concern about hate speech was raised throughout society, and as hate speech came to be raised as a topic of research and discussion in academia and in civil groups, the press also started to issue reports on hate speech (Hong, 2015). In 2016, the number of publications on hate speech was the largest yet, which seems to reflect the fact that Korean society has started to pay much more attention to the issue. The harms of hate speech are understood in similar ways amongst scholars, and this shared understanding works as a common motivation for researches on hate speech to be realized. As hate speech targets the marginalized groups of society, it negatively affects the freedom and dignity of those groups. According to J. Lee (2015), hate speech causes embarrassment and pain to particular minority groups, and “limits the equal rights of minorities and their participation in the public field by subjecting them to social stigma.,” In the same strain of thought, Lee (2016a) argues that hate speech limits the freedom of speech allowed to minority groups in terms of social structure, institutions and everyday life. Kim (2016) also notes the harmful nature of hate speech in relation to its definition as an act of attacking the identity of minority groups. The need to research the phenomenon of hate speech is also raised in connection to its effect of causing harm to social community. Hate speech harms democracy and social coexistence (J. Lee, 2015), and carries the threat to incite hate that may provoke group hate crimes (Hong, 2016). Lee (2016b) states that the spread of hate speech brings about the distortion of the public sphere. According to Lee,

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members of the target group are unable to fight against their antagonists, leading to the loss of their opportunity to participate in public discourse. This in turn results in the distortion of the public sphere and of the debate culture in the public sphere. Because hate speech lacks fundamental mutual respect between members of society, is takes a harmful effect in society.

The characteristics of research on hate speech The legal approach Research on hate speech in the legal field was consistent in its frequency with 0–2 studies conducted every year since 1999, when the first research was conducted, to 2014; however there has been a significant increase since 2014. In Table 2.1, it can be seen that six studies were published in 2014. This number increased twofold in 2015, when a total of 12 researches were published, and 13 studies were published in 2016. In the 45 researches in the legal field covered by this study, it was possible to find three characteristics. Firstly is the trend of introducing and interpreting foreign studies of hate speech. As previously mentioned, it is in the last three to four years that hate speech has become a social agenda that has attracted academic interest in Korea, and previous research of hate speech has been focussed on looking into the discourse of foreign countries. Secondly, there have been debates on hate speech from a regulatory perspective, as well as some discussion on the legislation of such regulations. This discussion has been particularly active in light of the recent social problematization of hate speech, and the possibility of regulation has been raised from several different perspectives. Lastly is the legal approach of online hate speech. Along with the rise of hate speech in online communities and social networking services has been a rise in the number of researches analyzing hate speech as a legal phenomenon. The interpretation of foreign research on hate speech The early research that opened legal discourse on hate speech in Korea focussed on the situation in the US in introducing the phenomenon of hate speech. The origin of the term “hate speech” itself coming from the US, cases from the US have been the subject of much study of hate speech in domestic legal research. Many studies introduce or explain the early forms of hate speech in the US and analyze new judicial cases or compare them to other countries such as those in Europe. Lee (1999, 2000) provides a detailed overview of the different stances taken on the debate on the regulation of hate speech by systematically categorizing legal studies on hate speech in the US, and analyzes a collection of relevant judicial cases. Looking into the discourse on the regulation of hate speech at universities, the study raises the issue of how to deal with the phenomenon of online hate speech in the foreseeable future. Cho (2002b) and Shim (2007) also look into different judicial cases in the US that are based on the First Amendment, and into the forms of regulation.

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On the other hand, there is as much research on hate speech and its regulation in the neighbouring Japan as research on the US. In 2014, the year when hate speech started to attract more attention in the academic field, the “Hate Speech Act” was introduced in Japan, and with this legislation came many publications and presentations on hate speech and its regulation in Japan (Ryu, 2016; Lee, 2016c; Moon, 2017). In addition, Park (2016) introduces the cases of major ICCPR treaty powers such as the UK, Canada, Australia and France, and calls attention to the situation in Korea. These countries have ruled certain types of expressions to be hate speech, the use of which is subject to criminal punishment. The study finds that the expressions determined to be hate speech in these countries are limited to those related to “immutable characteristics” that are not a matter of choice, such as skin colour, race, native country, nationality, gender identity and sexual orientation. According to this research, it would be reasonable to limit regulation of hate speech to only that on such immutable characteristics in Korea as well. There has also been active translation and publication of foreign books or publications that are not academic articles that take a legal approach to hate speech, particularly from 2016. Judith Butler’s Excitable Speech: A Politics of the Performative (1997), Jeremy Waldron’s The Harm in Hate speech (2012) and Jan Oster’s Media Freedom as a Fundamental Right (2015) are some examples of such publications. These foreign publications give information on the academic and legal discourse on hate speech in the West, and also provide some insight on Korean society, which has just started to address the issue of hate speech. The introduction or translation of foreign studies on hate speech and the legal approach to this problem can be seen as the beginning of the effort to understand the phenomenon of hate speech in Korea from an academic perspective. Hate and discrimination has a long history in Korea, but it was not recognized in society as a certain discourse. Because of this, there have been efforts to form a domestic discourse by looking into previous cases and studies from foreign countries. However, there have not yet been any specific research publications that take a legal approach to hate speech in Korea. This can be said to indicate that hate speech has not been perceived as a serious social problem in Korea, or that even though such perception did exist there was nevertheless a lack of public interest in the issue and of a systematic and theoretical academic approach to it. The regulation of hate speech One axis of research on hate speech in the legal field is the conflict between these who are for the regulation of hate speech and those who are against it. The argument of supporters of the regulation of hate speech centres around the harm that hate speech may cause to minorities. Target groups that are exposed to hate speech suffer from mental pain caused by prejudice, contempt, scorn, fear and self-reproach. Hate speech also attacks basic human dignity. Moreover, hate

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speech may provoke aggression towards target groups by inciting violence or discrimination. According to this stance, regulation on the level of expression can be justified as a preventive, preemptive measure because of these negative effects, and the harms of hate speech should be taken more seriously than those of defamation or libel. Leaving the problem of hate speech to the marketplace of ideas is ideal, but is also unrealistic. Some level of regulation is inevitable in that it results in significant damage for minority groups. That hate speech, when founded on historical or cultural experience, is essentially a unidirectional act of communication has also been raised as a reason why hate speech should be regulated (Lee, 1999). Meanwhile, those who take the opposite stance argue that the regulation of hate speech is similar to laws on defamation and libel in that it is not a problem that can be clear-cut and results in damage that is too vague. Because hate speech can be addressed with existing legislation when it becomes a problem, hate speech should not be regulated on the stage of expression. Even if damage is expected, it is better to systematically resolve the issue through a process of debate accordant with the principle of the marketplace of ideas. There is also an argument against the regulation of hate speech based on the idea that hate speech may strengthen one’s self-identity or improve one’s tolerance of hate. Moreover, some point out that banning hate speech is only a temporary solution rather than one that resolves the conflicts at the root of the problem, and thus can perhaps lead to further harm. Along with the debate on the regulation of hate speech is a tentative discourse on the need to legislate regulations of hate speech. While there has been an increase in hate speech targeting groups such as women in social networking services or other online spaces, there is no social consensus or set standard that can resolve this issue in an appropriate manner (Oh, 2016). Research on this discourse argues for legislation more in relation to the need to reduce the damage caused by hate speech than to the need to punish those who use hate speech (Kim, 2016; J. Lee, 2015). There is, naturally, also an opposition to even these kinds of regulations in connection to the argument for freedom of expression, diversity and equality (Lee, 2016a). It seems necessary at this stage to survey all existing discussions on this issue and to form a general theoretical framework on “the condonance and restriction of hate speech” by comparing the situations and experiences of Asia and Europe. The phenomenon of online hate speech Hate speech in online spaces is considered one of the most important threats to human rights brought about by the development of modern technology and new means of communication (Cho, 2002b). Online hate speech, due to the characteristics of online communication, is spread much faster and further than offline hate speech and thus creates situations with much more significant consequences. In Korea too, hate speech in online spaces has caused much

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controversy, and the need has been raised for a systematic and theoretical consideration of the issue of whether and how to regulate hate speech. Yoon (2016) looks into problems such as the use of expressions that sexually harass women in group chats, a controversial matter that has attracted much attention recently in Korean society. The study argues that sexually derogatory remarks on particular individuals of the female gender in group chats can be punishable by law as defamation and libel and needs to be regulated. According to Yoon, it is necessary to implement preventive education on the illegality of sexual harassment to the general public, including groups such as university students. Lee (2016) focuses on the acceleration of the spread of hate speech through online comment culture. Analyzing recent online hate speech-related judicial decisions of ECtHR (the European Court of Human Rights), Lee concludes that it is necessary that Korea also finds a specific standard of regulation of online hate speech to legislate. In all, legal studies of online hate speech point out the absence of laws that clearly restrict hate speech in Korea, and argue for the need for new legislation by looking over existing legislation or foreign judicial cases. As will be elaborated later in this research, studies conducted in fields such as communication that take a non-legal approach, in particular a culturalist approach, identify and analyze online hate speech as a serious problem and emphasize the need for a solution. In this sense, legal studies make it possible to consider aspects of hate speech that cannot be considered in non-legal studies. As hate speech is spread through online communities and new media technology, the need for legal studies to intervene in the situation increases. Non-legal approaches Research on hate speech in fields unrelated to law are not yet so active in number or diversified in their approach. However, as previously stated, it is expected that there will be more studies from various perspectives in non-legal fields in the future. An analysis of existing research taking non-legal approaches shows that the most efforts at research have been made in the field of communication. As can be seen in Table 2.1, hate speech has been a topic of research since 2015 in this field. Many studies focus on hate speech that occurs in online spaces, and in these studies, misogyny is a topic of particular interest. Much of the research on misogyny online has been conducted through discourse analysis. These studies find that misogyny is a speech strategy used by users of certain communities, and focus on revealing the specific workings of the strategy as well as the contradictions it carries (Kim, 2015; Kim & Kim, 2016; Um, 2016). In online culture, women are sexually objectified, and new slang that stereotypes, discriminates against and derogates women emerges. Moreover, the “like” function of Facebook leads acts of hate to be accepted as justifiable everyday entertainment. By revealing the strategic and structural aspects of online misogyny, discourse analysis studies of online misogyny provide a basis for its criticism.

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A similar discourse analysis study that does not look into the topic of online misogyny but nevertheless employs a similar method of research is Song (2016), an analysis of the far right websites of Korea and Japan. By comparing the antiJapan and anti-Korea sentiment that appears on websites such as 2ch, Azitokukai, DCinside and Ilbe, this study analyzes the conservative swing and the “Net uyoku” characteristic intensifying in both Korea and Japan from an ethnocentric perspective. On the other hand, quantitative research on online hate speech has been composed of attempts to measure hate speech on several levels in relation to its effect or the possibility of its regulation (Lee et al., 2015; Hong & Nah, 2016; Lee & Park, 2016). These studies focus on producing knowledge that will provide empirical context to the regulation of hate speech. The ultimate aim of these studies is to determine the possibility of regulation and restriction of hate speech by uncovering how networks of online hate speech are structured and operated, and what differences there are in the production and spread of hate speech for different individuals and groups. Both qualitative and quantitative research in communication focus on the fact that hate speech is being produced and spread through the technological characteristics of online spaces. Online spaces are indeed central in the production and spread of hate speech, and active networking functions, constant exposure and the possibility of rapid diffusion can cause the reinforcement of the social harm of hate speech. The awareness of the significance of these media-related and technological aspects can be seen as the reason that research on hate speech is relatively active in the field of communication. What is more, communication research also attempts to find possible solutions to the problem of hate speech in connection to the role of media. Kim (2015) raises the need to implement feminist media literacy education as part of an effort to promote gender equality in online spaces. Hong and Nah (2016) point out that the press needs to be careful in producing news reports on victims, as the way in which victims are referred to in the press affects the way in which they are attacked. While there are not so many fields involved in research on hate speech apart from communication, there are some studies that take a feminist perspective, a historical perspective, or a philosophical perspective. Research in the field of women’s studies, which has consistently been centred on looking into the problems of discrimination against minorities in Korean society, pays particular note to the hate speech and hate-related phenomena that have risen in recent times. In particular, these studies have a tendency of interpreting hate as a dominant affect that is connected to the prevalent anxiety of the neoliberal age (Sohn, 2015; Lee, 2015b). From a historical perspective, Kwon (2016) states that hate speech in Korea is hate that has been sustained from the age of the Cold War, and that has been formed in Korea’s historical dynamics. An attempt to analyze the philosophical, moral aspects of hate speech is from Yoon (2015), which approached the speech of Ilbe in connection to psychoanalysis and Deleuze’s philosophy.

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Overall, non-legal studies of hate speech outside the field of communication focus on investigating the mechanisms underlying hate. These researches, unlike legal studies that attempt to find a countermeasure to hate and unlike communication studies that look deeper into the phenomenon of hate, are also noteworthy in that they are also bringing to light important aspects of hate speech.

Conclusion and discussion This research sought to determine the characteristics and tendencies of academic research on hate speech in Korea through an analysis of the research conducted during the past 20 years. There was a total of 62 academic articles on topics related to hate speech, which indicates that the research is not yet very active. The number of researches has been on an increase since 2014 and it is expected that there will be even more research in the future. The research on hate speech in Korea, nevertheless, can still be said to be quite little in comparison to that in Japan or Europe. Because 20 years have passed since research was initiated on this topic, it can be said that Korea is only now moving from the stage of explaining foreign cases to discussing the situation in Korea. There still can be found a tendency to analyze phenomena from diverse perspectives, particularly in relation to the phenomenon of misogyny, which can be said to be quite a Korean situation. Of the 62 academic articles analyzed in this research, legal studies compose about 74%, with a total of 46 studies. This can be seen to reflect the fact the approach of hate speech has been centred on the discussion on whether it should be legally regulated. Most legal studies agree that there is a need to regulate hate speech, but there are also some that argue against the regulation of all forms of hate speech, stating that only provocative speech that may incite violence should be restricted and that criminal and civil regulations should be distinguished. Ultimately, studies are seeking a way to achieve harmony in both the protection of freedom of speech and the prevention of harm. In contrast, non-legal studies are more diverse in their approach to analysis. A total of 16 non-legal studies compose 26% of the research on hate speech, and among these, studies in the field of communication compose about 69% with a total of 11 studies. There is one study taking a historical approach, one taking a philosophical (moral) approach, one taking a sociological/linguistic approach, and two taking a sociological approach. In non-legal studies, communicationrelated studies are the majority. Among these, three studies take a feminist (women’s communication) approach, five are on the (quantitative) analysis of networks, and three take a cultural approach. With these characteristics, research on hate speech in Korea can be evaluated to be lacking in terms of quantity and in terms of diversity of approach. In developed countries, the research on hate speech is not only larger in their number but also more diverse in their approach, and so it seems that in the future, research on hate speech should reflect a wider range of perspectives. Hate speech is the most important of the many social problems that are occurring all over the world, but in Korea it can be expanded to an even more

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complicated matter as online communication is particularly well developed in Korea. Much of the current research does not seem to provide a consistent answer on how to appropriately respond to this change in social environment. There is no clear definition of hate speech; there are not many studies of hate speech from different academic fields, and there is a difficulty in finding a clear distinction between speech that can and cannot be regulated. Nevertheless, there is a potential and overt harm to hate speech that society will have to address in some manner, and the existing research is significant in that it emphasizes the fact that Korean society must solve this problem in order to realize social justice. In all, there is a need for some restriction of hate speech, and it seems a pressing issue to distinguish what speech can be regulated, as has been done in the US and in Europe. In the case of Korea, anyone can be subject to hate in relation to characteristics such as political stance or gender, and indiscriminate attacks alternate with acts of hate. Hate speech is at times justified under the facade of “freedom of speech,” and people tend to believe that their speech is allowed in the domain of expressive freedom. However, hate has come to be used even in politics in recent times and hate against racial or sexual minorities is spreading, and so it has become a more urgent matter to distinguish what kind of speech can be regulated (Ahn, 2017). To make clearer this distinction, there is a need to conduct more academic research and to develop the social discussion on this issue in the present. In particular, it seems necessary to have a more extensive discussion on how to mend to the damage caused by hate speech. Moreover, non-legal research on hate speech that looks into the networks formed by the effects of hate in society and into the historical and social contexts underlying hate should be conducted from a wider range of fields. It will be possible to form a shared understanding in cultural and institutional aspects of society when we are able to uncover what is at the roots of hate in Korean society.

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Hate speech in Japan Patriotic women, nation and love of country Jackie J. Kim-Wachutka

Images and perceptions of the other: Discourse construction, historical implications and memory embedded in hate1 Since the late 2000s, the most prominent face of hate speech in Japan has mainly been the ultra-right or Action Conservative Movement (ACM)2 group Zaitokukai, short for Zainichi Tokken o Yurusanai Shimin no Kai3 [Citizens Against the Special Privileges of Zainichi Foreign Residents in Japan], who especially target Zainichi Koreans, one of Japan’s largest ethnic minorities. The group is part of a larger patriotic movement promoting nationalistic views on education, history and politics on the Internet.4 The already historically tumultuous geopolitical conflict between Japan and Korea has been exacerbated by the testimonies of comfort women beginning in the early 1990s, the ensuing conflicts over the comfort women “problem,” the phenomenon or rather perceived threat of a “Korea Wave” and its pop-culture influx, the co-hosting of the 2002 FIFA World Cup by Japan and Korea that awakened extreme national pride, North Korea’s admission that same year that it had abducted Japanese nationals, the escalating dispute over the Takeshima/Dokdo islets, and the constant threat of North Korean missile launches. All these issues and more can be seen as possible causes of the simmering anti-Korean movement in Japan, especially against Koreans in Japan, whose ancestors stem from Japan’s former colony. In recent years “patriotism” or aikoku in Japanese, which literally means “love of country,” has become the force granting power to words and sentiments that were previously only expressed in private. By intermingling the public and private, the Internet has also fueled a movement giving voice to what was once taboo and seen as politically incorrect. Kenichiro Ito asserts that “the origin of racism centered on Zaitokukai can be dated back more than a decade” (2014, p. 436). However, is anti-Korean sentiment just a phase or trend? Or has it always been part of Japan’s social construct and memory concerning the Korean “other,” subtly embedded in the minds of the mainstream? Yasuda Kōichi writes, “The Japanese society up until now has held bias and discrimination against Zainichi Koreans. Looking from above to below, this kind of discrimination, no matter how long [it has existed], does not disappear”5 (2013a, p. 29). During ferocious and vitriolic hate speech in public places, the word Chōsen is

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often invoked and appears on placards. Written in Chinese characters – 朝鮮 – it usually refers to the once-unified Korean Peninsula that was colonized by the Japanese (1910–1945). But written in Japanese katakana – チョ ーセン – the word takes on a derogatory meaning that encompasses stereotypical ideas of filth, ignorance, poverty, underhandedness, mistrust, danger and violence (Harajiri, 1998, pp. 14–15). What historical contexts are evoked in the language of hate speakers when they use the word Chōsen or Kankoku [Korea]? Indeed, looking back on Japan’s history, the perception of Chōsen and Chōsenjin in Japan has long been precarious. Inoue (2002) sees the traditional view of Chōsen in Japan as one of “malicious contempt” [inshitsu na besshi], created throughout Japanese history during moments of conflict as Japan tried to position itself vis-à-vis the “other.”6 Inoue contends that the two nations’ relationship cannot be reduced to a single moment of goodwill and peace between the two countries, nor a moment of sudden ill will and negativity (204–205). Instead, the relationship between both countries is intertwined within intricate historical events, each attempting to situate and position themselves on the world stage.7 In the modern era, these ideas of an “other” juxtaposed with an emphasis on a mythical, unbroken, divine imperial line and heritage infiltrated the national consciousness of the new Meiji state, which promoted the ideas of homogeneity and a common origin. The framework of the enduring essence and consanguineous unity of kazoku kokka [family state] provided the Japanese people with a sense of national purpose and identity (Weiner, 2009). To establish this powerful national collectivity and further fuel this sense of national and ethnic superiority, an “other” that represented an inferior and subordinate existence was needed. Japan’s desire to express its collectivistic national identity to the fullest was achieved through colonial invasions ostensibly to bring modernity, civilization and enlightenment to the lesser “other.” In Korea from 1910–1945, in order to assimilate the colonized individuals as “children” of the Emperor, the Japanese government attempted to obliterate Korea’s culture, language, education, names and, in essence, sense of self. The political unrest and instability caused by the momentous protest by the colonized natives seeking independence that culminated in the March 1st Movement in Korea in 1919, and the false rumours that Koreans had tried to poison wells after the Great Kantō Earthquake of 1923 legitimizing the killing of thousands of Koreans in Japan, continued to create stereotypical images of Chōsen and Chōsenjin as dangerous, unruly, uncivilized and underhanded. Harajiri Hideki further posits that a Japanese “nation-state” [kokumin kokka] was promoted among the population via a “national education” [kokumin kyōiku] that emphasized Japanese culture and language as constituting a true “Japanese” consciousness (1998, pp. 27–29). Colonial occupation and the enforcement of imperialization [tennō-ka] firmly established the characterization of Chōsenjin as “non-Japanese” [hi-Nihonjin] and synonymous with rejection and discrimination. Being Japanese meant being of a higher status, which fuelled feelings of superiority at the same time that the term Chōsenjin became increasingly associated with the idea of insolent Koreans [futei Senjin] (23–28). Currently, the

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racist sentiment of this historical construct is seen on placards that the hatespeakers carry. The words futei senjin 不逞鮮人 [“insolent Koreans”] and Josen 除鮮, which incorporates the Chinese characters for “exclusion” and “Korea” mocking the Korean-accented pronunciation of Chōsen, bind the historical past of discrimination and oppression to present-day expression of hate.

Performing gender and patriotism: Japanese patriotic women’s groups Collective hate speech – a consolidation of words that encroach the target’s psychological and emotional state – is a force often perceived by the mainstream as androcentric rhetoric that provokes violence among its participants, instigating the target’s annihilation. Masculinity is unquestionably viewed across cultures and societies as legitimate, authoritative and powerful, constructing a hegemonic metanarrative. It serves as a kind of call to arms by men who use insults in order to incite. Such provocation is clearly identifiable. The speech act achieves its objective by the extent of pain it causes the target and the level of disturbance and discord it creates. However, can hate speech have a more insidious lasting effect delivered in a more effeminate style of performance? This chapter introduces another voice of hate speech in Japan conducted by members of Japanese patriotic women’s groups – Nihon Josei no Kai Soyokaze [Japan Women’s Group Gentle Breeze] established in 2009; Aikoku Josei no Tsudoi Hanadokei [Patriotic Women’s Gathering Flower Clock], founded in 2010; Nadeshiko Akushon [Action]8 Japanese Women for Justice and Peace, established in 2011; and Saotome Kai [Young Female Rice Planters Group], initiated in 2013 – who call on the sociocultural definition of Japanese womanhood as they emphasize culture and femininity in order to “protect” their country. By battling in words and activism these women take it upon themselves to annihilate “lies” and “falsehoods” and restore historical truth. Their mission is to reclaim the honour and dignity of their forefathers who sacrificed their lives for their country and nurture pride in the hearts and minds of Japanese children and the future generation. By interweaving elements of having a grateful heart, recognizing and honouring sacrifice and being loyal to one’s nation and ancestors, these women narrate a love of country whose ultimate expression of patriotism is calling out “liars” in order to restore historical “truth.” Kitahara Minori and Pak Su-Ni (2014) provide one of the few extensive writings on Hanadokei and Soyokaze. In 2013 on August 14, the same day the United Nations suggested should be designated a day commemorating comfort women, Soyokaze organized a demonstration in protest. “Everyone, there were no comfort women; they were simply prostitutes,” declared a group member who spoke at the demonstration. Male supporters at the event responded, “Sō da!” [“That’s right!”] (Kitahara, 2014b, pp. 88–89). The women referred to one another as benshi [orator] and displayed a talent for speaking. Unlike the majority of hate speech demonstrations where men stand in the front speaking into the microphone while women stay in the background, during the women

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group’s performance, the men cheer the women on from the sidelines. In between supportive vocal affirmations, the men take photos and videos of the women as they speak, giving them a sense of significance. Amid shouts about comfort women being liars and prostitution being a national product of Korea, an older woman took the microphone and began to engage the audience, the passersby: “Comfort station worker was originally an admirable profession. Those who degrade that work as sexual slavery, while crying so pitifully [. . .], are feeble old women” (Kitahara, 2014b, p. 97). Another female speaker said, In short, it is propaganda by the failed country of Korea to wangle money from Japan. Apology and compensation, where is the money for such compensation going to come from? Isn’t it money that all of you earned from your sweat and sometimes even your tears laboring? Is it acceptable to pay this money to people who are called lying Chōsenjin and former prostitutes? Even without this, our taxes are going up and up. (98) Soyokze’s central idea is that “there is a crisis in Japan due to the press’s biased coverage and the masochistic historical views in class lessons” (Soyokaze, n.d.). The group has 571 main and 307 supporting members throughout Japan, with the largest membership in Tokyo, Osaka and Kanagawa.9 The founder, with the alias Suzukaze [凉風, “Cool Breeze”] Yukiko,10 and advisor, Higashikaze [東風, “East Wind”] Umeko, feel they must defend and protect their country by telling the “truth” and making sure their children learn the “correct” history. Soyokze’s manifesto states: We no longer can leave it just to men! To protect Japan, we women are standing up. To not lose Japan, this wonderful country that our forefathers have given their lives to build up, Isn’t it that we, now, must do our best? Talk alone will not change anything; we will act. Soyokaze is a women’s group that loves Japan. (Soyokaze, n.d.) Although Soyokaze stresses its patriotism and anti-foreigner stance – especially against Zainichi Koreans, Chinese and illegal (im)migrants – it claims on its website to be open to “anyone who loves Japan”: At present, “Soyokaze” has women members from the teens to those in their 80s, not only in Japan but also overseas. Soyokaze does what can be done even as individuals, such as posting, blogging on the Internet, writing on bulletin boards, and oratory activities out on the streets. If you love Japan, anyone can join us. Men can become supporting members. (Soyokaze, n.d.)

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Soyokaze has also been active in organizing demonstrations calling for the removal of monuments remembering the Great Kantō Earthquake massacre, forced labour conscription of Koreans during wartime, comfort women and other “fabricated” historical commemorations throughout Japan. From 2012, they have played a vital role in demanding the removal of a stone memorial for Korean victims of forced labour in Takasaki City, Gunma prefecture. Their activism ignited other conservative groups to also join their campaign calling for its removal. In 2014, Gunma Prefecture asked the association responsible for erecting the stone to remove it, which resulted in a lawsuit between the prefecture and the association. The women’s group looks upon these kinds of memorials as an example of hate that must be stopped. Under the title, “Now is the chance to stop hate speech against the Japanese,” Soyokaze’s blog states, Is there a monument that is jeering at Japanese people around you? Practically all of the [stone] works turned into memorials display words such as “reflection,” “victim,” “mistake,” “forced recruitment,” “colonial rule,” “harsh labor,” “aggression,” “friendship,” “East Asia for Peace,” “memory.” A typical example is the memorial monument for Koreans in Gunma Forest. (Soyokaze, 2019) The writer of the information blog, Suzuki, asserts that the Japanese have shown strong patience at such “false” accusations that have hurt their reputation. And recently the government, large corporations and even the biased media have begun to move in the right direction of recognizing Korea’s “unreasonable demands” (Soyokaze, 2019). However, she reproaches the local government and Buddhist groups for continuing their support of Koreans and Chinese. She writes, It is the very existence of Japanese within Japan who have allied with South Korea, North Korea and China and look down at Japan with contempt that is the beginning of all the problems. Japan’s real enemy is within Japan. (Soyokaze, 2019) She continues by enlisting help from the readers to widely distribute a list that she will soon have in order to target all such monuments that are conducting “hate speech” against the Japanese.11 Members of Soyokaze believe that in order to emphasize the “truth” and set the nation on the right path, they must not only speak but also do so loudly and forcefully. Another women’s group, Aikoku Josei no Tsudoi Hanadokei claims 1,524 official members as of January 2020 (Hanadokei n.d. a). Its focus is on women in their 20s to 40s, such as housewives and mothers who are not involved with a specific political party or organization. Oka Makiko and Fuji Machiko in 2010 initiated the group at a women-only demonstration called Japanese Mothers’ Parade dressed in Japanese kimono. “Smilingly” they held up colourful signs contesting various political agendas. They oppose, for example, husbands

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and wives retaining different family names [fūfu bessei], claiming that this goes against the traditional Japanese family and it also has a negative effect on their children (Oka, 2018, pp. 181–185). A mission that has especially energized the group is seeking information about taxes and benefits related to foreign residents. In a nationwide campaign in 2010, they petitioned local municipal governments to conduct a thorough inquiry concerning foreigners who may unjustifiably be receiving child allowance support [kodomo teate] even when their children are living abroad in their home countries (Hanadokei n.d. d). In 2011, the group launched a campaign requesting local governments to release the percentage of foreigners paying municipal taxes, as well as those receiving welfare benefits, and whether or not a difference exists in the application process for a Japanese and foreign applicant (Hanadokei n.d. e). In 2012, it began performing regular women-only “street oratory” by the Hachikō Statue in Shibuya, Tokyo, emphasizing that Korean people are liars (Hanadokei n.d. b). Members are free to join subgroups, such as the music group Hanaoto [Flower Sound], which performs wartime military songs, including at the Yasukuni Shrine in Tokyo. To appeal to potential supporters, the group’s website says, What? Women performing wartime songs? Some people may be surprised by this, but we hope to change such impressions. Japanese wartime songs are not just about bravery, they also have lively energy. There are many beautiful lyrics. We want to show the wonderful wartime songs that many people are forgetting. (Hanadokei n.d. c) Other subgroups include Wabunka-han [Japanese Culture Group] and Chīmu Wahaha [Team of Japanese Mothers]. Women can also join the oratory group to make speeches on the street. In videos uploaded by the group,12 well-dressed members hold up banners while each speaker stands on a small red flower-shaped carpet as a stage and elicits attention, not by speaking forcefully or harshly but in a soft, easy to understand manner, smiling and gently engaging with passersby. According to Kitahara, the speakers address difficult topics such as the Japanese Constitution, which was written by American occupation authorities, and compare it to rotting kitchen garbage that stinks no matter how much air freshener is sprayed to cover up the odour (2014a, pp. 54–55). The key words namagomi [raw garbage or kitchen waste] and shōshū supurei [deodorizing spray] are recognizable themes that reflect the everyday life of ordinary women. By connecting a difficult topic to everyday women’s work, speakers can more easily attract the attention of passersby. After all the media coverage of the hate speech demonstrators and the counter-protestors attempting to drown each other out, especially at the height of activism on both sides, the general public has begun to look upon the demonstrations with disapproval as bothersome noise and chaos, causing unwanted discord to the surrounding community. Kitahara points out, after observing a performance in May 2013 by Hanadokei members in

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Shibuya, that as a method to attract the attention of the youth, one young speaker began her speech by mentioning her recent purchase of an iPhone. When passersby looked towards her after hearing this familiar word, she continued with her true message: “It has a heart shaped kyokujitsuki [former Japanese flag used on military ships]! Don’t carry a Union Jack or Stars and Stripes. As Japanese, let us walk around with this design” (55). She then moved on to the topic of the debate on revising Japan’s Constitution and then to the issue of comfort women. From a nearby baby carriage, she brought out a panel with a picture of a Korean woman wearing the traditional Korean chŏgori dress with a hole where the woman’s face would be. The speaker stuck her face through the hole, next to which was written “Comfort women are liars,” smiled and said loudly, What would happen if the Japanese do not believe the Japanese military? The Japanese have not done such cruel things. The women became comfort women because they wanted to earn money. These women are just making noise because they want money. . . . There is no basis or proof. . . . It is just as mayor Hashimoto13 said. (56) A few of the woman’s male counterparts surrounded her, taking her photograph and continuously chimed, “Sō da!” [“That’s right!”] (56). Hanadokei’s videos of their street oratory reveal the soft-power tactics its members use as they draw on their gender, performing Japanese womanhood and combining messages about traditional culture with political critique: Hanadokei is a regular women’s group and we do not have any affiliation with other groups or political organizations. We are just ordinary people. Today’s theme is about being cautious concerning Korean people’s lies. . . . What is ianfu [comfort women]? . . . How well do you know the nearby country Korea? Is it yakiniku [grilled meat]? There is kimchi. Also there are the cosmetics. Korean makeup is famous. Famous celebrities appear in advertisements. But today, I want to talk about the comfort women problem. The truth about comfort women is hardly featured in newspapers and on TV. (Hanadokei, 2015a) The woman in this particular video asserts that the comfort stations were necessary to protect ordinary civilian women from rape and that the comfort women’s claim of having been forced is untrue, because they were paid prostitutes who voluntarily accepted the job. In another video, titled “Let’s Enjoy! Japan’s Traditional Events,” several members of Hanadokei emphasized the importance of Japanese traditional culture. Confronting counter-demonstrators who tried to drown out their speech, they expressed the increasing need to set Japan on what they feel is

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the right path, because the country had reached the point at which by simply wanting to talk about Japanese traditional culture, they are accused of discrimination. They again used culture and tradition to attract passersby who might share a similar loyalty to his or her own culture and tradition. By gaining the sympathy of those who see only this particular message, the speakers succeed in portraying the counterdemonstrators as anti-Japan troublemakers and a menace, threatening the Japanese people’s culture, tradition and way of life. One speaker said, Everyone, isn’t it unfair and discriminatory that there is such a reaction when we want to talk about Japan’s traditional events? Look at the title. It says, “Japan’s Traditional Events.” But when we want to talk about Japan’s traditional events, they disturb us like this. [. . .] Japan is a great [subarashii] country. We must not be influenced by Western culture. We are in danger of forgetting our own culture. But we as Japanese must celebrate the wonderful Japanese culture, Japanese traditional culture, and be conscious of our ethnicity. (Hanadokei, 2015b) Another speaker incorporates into her script a traditional Japanese day of thanksgiving on November 23 called Niinamesai, a ceremonial offering of newly harvested rice to the deities by the Emperor, when eating new rice-harvest [shinmai] marks the beginning of Autumn (Hanadokei, 2015b). In this way, in between calling Koreans liars, the women’s group incorporates the need of having a grateful heart to the gods and farmers who provide rice, the staple food of Japan, and venerating the ancestors for their sacrifice in making it possible for them to continue to celebrate Japanese traditional culture in a peaceful society. Being conscious of these notions and defending them, in their view, is the essence of being patriotic. Yamamoto Yumiko, former vice-president of Zaitokukai, who began a movement called “Comfort Women’s Lies Are Unforgivable! Nadeshiko Action 2011,” felt that Japanese women had to come forward to restore the truth and save Japan’s standing in the world. She is the founder of the group Nadeshiko Action Japanese Women for Justice and Peace, whose motto is “Passing on the correct history to the next generation.” Yamamoto expressed that men, such as Zaitokukai members, who criticized the comfort women issue were viewed by the public as misogynistic. Therefore, she believed that women should tackle this problem (Kitahara, 2014a, p. 41). What made her and her fellow members angry is that Japan’s reputation has been tainted on the world stage, while the comfort women and their supporters have gained broad international support. Beginning in 2010, she and other women started writing emails and letters opposing the naming of a street in Queens, New York, in honour of comfort women and the establishment of a Korean Comfort Women’s Day in Glendale, California.14 She and her fellow female activists viewed these memorials as defamatory against Japan. Although their opposition did not prevent the commemorations, they succeeded in mobilizing a significant core

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of the Japanese American community and capturing the attention of the American media with their protests. Yamamoto believed that there was meaning in the women’s demonstrations and activities disparaging the comfort women because they were doing this for the sake of their children and Japan’s future and its standing in the world. Among the different women’s groups who have members throughout Japan, there is also a smaller, more locally concentrated gathering called Saotome Kai [Young Female Rice Planters Group] that was launched in 2013. The founder under the pseudonym Ishigami “Neneko” and a handful of members conduct street oratory activities in Fukuoka and Iizuka City in Fukuoka Prefecture to upload on YouTube and Niconico channels. The group’s mascot is a gray-, white- and beige-coloured tabby with alert, large round-eyes and a small pink nose, wearing a Japanese flag across its forehead as a bandana. The group believes that Japan’s national polity [kokutai] and national customs and manners [kokufu] that were lost after WWII must be restored in order to regain the honour and pride of the Japanese who are being degraded by South Korea, North Korea and China. Saotome Kai states that their street oratory aims, first and foremost, to disseminate the truth that the mass media fails to cover, for example “logical” reasons why Korean ethnic schools should not be subsidized by the Japanese government, and the need to publicize crimes committed by foreigners in Japan. The members loudly express their opinions concerning the Hate Speech Act of 2016 in front of prefectural and city government buildings, claiming that it suppresses Japanese people’s right to freedom of speech. They also call for the removal of all memorial stones for Korean labourers from Iizuka City and Fukuoka City and emphasize that their role as a citizens group is to appeal to the community, society and government by broadcasting their complaints on the streets. Saotome Kai demands that politicians and the government give priority to Japanese people over foreigners and seeks the expulsion of any foreigner who harms Japanese citizens. They call for the establishment of a constitution drafted by the Japanese to protect themselves and also support the expansion of the national defence force. They seek to implement correct historical education in schools that honours their ancestors and their sacrifices. Only Japanese citizens can be members and the group does not accept anyone who has naturalized and refuses participation by South Korean, North Korean or Chinese nationals. Unlike the other women’s groups who specifically call on women to participate, with men being “supporting” members, Saotome Kai does not implement gender restrictions, although its founder is a young woman and the majority of the members are women. They welcome anyone who wants to express their discontent, even if it is just reading out a short speech or simply holding a placard or banner. The small group works closely with conservative organizations in cities such as Hiroshima, Osaka, Kyoto and Tokyo (Saotomo Kai n.d.). In a video uploaded on You Tube, its founder Ishigami called for the destruction of Korean memorial stones in Iizuka City and throughout Japan: We are citizens who want to enrich the future of Japan. We are also not related to ultra-right extremist groups. Please listen to our claims that are

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[made] by ordinary Japanese. How do you interpret the modern history of Japan? Probably self-deprecating Japanese who have learned it [history] in schools believe that the Japanese have brought the world into war and many may have such masochistic view. But such history is absolutely wrong and many thoughts and evidences have surfaced that support this. The Chōsen memorial stone in Iizuka Lane in Iizuka City, although the content of it is absolutely contrary to the facts of history, remains there for almost 20 years. The terrifying fact is that it is preserved and maintained through our taxes. (Saotome Kai, 2018) Ishigami, a woman in her 30s wearing a simple white t-shirt and slacks with ankle boots and a casual boater hat, claims that the memorial in Iizuka City and others throughout Japan falsely misinform. This particular street oratory took place near the memorial. As Ishigami spoke, the pitch of her voice escalated. She asserted that the stone memorial fabricates history by stating that 150,000 Koreans were forcibly brought to labour in the coal mines during the war when Korea was under Japanese colonial occupation and many were brutally killed by the Japanese. During this period, she argued, Chōsenjin Koreans were also considered Japanese and they, alongside the Japanese, worked and fought for Japan. She insisted that the labourers were given excellent sleeping accommodations, were well-fed and protected, were better treated in comparison to the Japanese labourers, and also were given much safer types of jobs compared to the Japanese. The “fabricated” history of Koreans being treated brutally being propagated throughout the world made her angry. She continued by insinuating that these stone memorials were inconspicuously placed in “hiding” in areas away from general view so that the memorials with their false historical attributions could remain permanently without opposition, misinforming those who do not know the actual “correct” history. By emphasizing the word “hiding” she tapped into the stereotype that Koreans “sneakily” hide their identity and pretend to be Japanese for personal gain. For Koreans, she said, everything is about getting money. She then moved on to explaining why comfort women being forced is also a lie and that although the women actually profited from earning large sums of money, they still want to wangle more money by degrading Japan throughout the world with their statues. She particularly underscored the fact that Koreans always lie. Ishigami claimed that because of these kinds of false propaganda accusing Japanese forefathers to be racists, and Japanese soldiers and Japanese men to be rapists, Japanese children abroad are being terribly bullied and are afraid of revealing themselves as Japanese. Therefore, such memorials must be destroyed so that Japanese children can have pride in being recognized throughout the world as being polite, honest and technologically advanced. Ishigami repeatedly emphasized that Koreans are liars and, likewise, Zainichi Koreans are also liars. She claimed that the majority of them came to Japan through illegal entry and are receiving welfare and demanding retirement pension without taking on Japanese nationality. The “fact” that angered

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her is that one in three Zainichi Koreans commit crimes and they are doing it while using Japanese names (Saotome Kai, 2018). Ishigami’s speech resonates with the narratives of the other women’s groups. Their mission is an erasure of historical memory that they believe has been falsified because of Japan’s defeat in WWII. The members of the women’s groups look upon Korea and China’s propaganda efforts to denigrate Japan with “lies” as unforgivable. Worse yet for the women, these “fabricated” claims debase their forefathers and at the same time plant a seed of shame in the hearts of Japanese children, not only in Japan but also abroad. Therefore, as women, they feel they have a duty to protect the reputation of their ancestors and safeguard the safety of Japanese children from emotional, psychological and, as they claim, physical harm lashed out by those who have been convinced that Japan was a terrifying wartime aggressor to countries whom it had actually helped. The women’s groups build upon each other’s narratives, reinforcing a given framework while revealing “truth” in their own style in order to push forth a common agenda. They also network and support each other’s activities. Ishigami Neneko corresponded with Soyokaze’s founder Suzuki Yukiko after her explicit request and negotiation attempt was denied by the city hall in Iizuka City. She writes: Thank you for always posting [our activities]. I cannot hide my heartfelt anger concerning the recent flat-out refusal by Iizuka City Hall concerning Saotome Kai’s last-resort demand that it [city] installs a signboard of rebuttal by the Japanese [people] next to the fabrication memorial stone. It seemed at one point that there may be progress, but I feel betrayed. However, if we leave it the way it is, we should never forget that it may develop into a second Comfort Women problem. [Memorials being built internationally]. I feel a deep sense of sympathy that probably it was the same for you Soyokaze, and the frustrating feeling that you also must have had concerning the memorial stone for Chōsenjin Koreans in Gunma forest. Let us not give up until the end to protect the Japanese honour. I pray for [the success] of your activities. (quoted in Soyokaze, 2018) Soyokaze’s founder Suzuki consoles Ishigami’s disappointment, encouraging the younger woman by praising her activism. She emphasizes that although the left wing has had a long head-start, by working together they can achieve their common mission of revealing lies and unveiling the truth. She writes: Dear Saotome Kai’s Ishigami Neneko, Thank you for always presenting your activities which give me much courage. I am thankful from the bottom of my heart. Also I am able to learn from your meticulous negotiations with administrators and your

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street oratory. I have a feeling that our side is one hundred years behind the left wing [in terms of] money, technique, and organizing. But still let us do our best together believing in the changing of the tides, without giving up and being persistent. (Soyokaze, 2018) Departing from the aggressive, confrontational style of hate speech at the height of Zaitokukai rallies, the women’s groups make themselves visible utilizing a combination of a subtle but more perpetual style of hate speech. Among their strategies, street activism and oratory continue to be an important method but equally important is being internet savvy to reach a wider audience. They utilize social networks, blogs, online videos on popular sites such as YouTube, Niconico dōga and Channel Sakura/Japan Front Sakura, 2channel online forums, Twitter, chat rooms and their organizational websites. Furthermore, another extremely important method that the women’s groups are employing is lobbying politicians and like-minded civic-group organizations nationally and internationally to widen their activism. In this way, self-proclaimed patriotic women fall in line for the good of the nation and stand by the men who build and defend it. The romanticism of loyalty towards their nation, along with the images of the men fighting on the battlefield and risking their lives, strengthens their determination to also do their part by raising their voice. A common theme in their narratives is their pride of being strong and displaying the Japanese character of bushido that defines strength, loyalty, honour and obedience. Sanami Yūko’s Joshi to aikoku (Young Women and Patriotism, 2013) refers to this “unique” Japanese spirit that she considers to be the foundation of patriotism – politeness, kindness to others, valuing righteousness – qualities that one of her interviewees, a young woman, discovered to be the beauty of a true Japanese woman. Being proud to be born and raised in Japan, a country that the world respects, one should present the uniqueness of being Japanese inherently embedded with the spirit of wa [Japan, harmony]. Furthermore, the duty lies with women as mothers to nurture this Japanese spirit, to teach their children to love Japan. This is something that only women, not men, can do because of the fact that they are women and mothers (2013, pp. 233–257). Patriotic women’s strategy is to stir up empathy within those who share their sense of loyalty to the nation and pride in their tradition, culture and identity as Japanese, and evoke antipathy within the general public for the relentless demands from countries like Korea for apologies and reparations.

Venerating “Japaneseness”: Sacred dimension of “patriotic porno” “I am so grateful to have been born in prosperous Japan” is the phrase that starts off Nadeshiko Action’s Yamamoto Yumiko’s Josei ga mamoru Nihon no hokori ([The Pride of Japan Defended by Women], 2014). Similarly, journalist and

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political activist Sakurai Yoshiko’s book titled Nihonjin ni umarete yokatta ([Thank Goodness for Being Born as a Japanese], 2015) emphasizes the need for the Japanese to know and appreciate their “true” history so that they can restore pride in being born a Japanese that the world envies. Tomita Akiko and Okada Ichika’s young heroine Sakagawa Kanade, in their three volume manga series Hinomaru gaisen otome [Young Maiden Hinomaru StreetDemonstration] is introduced to the reader with the following sentence that describes her inner thought: “Japan is such a peaceful and prosperous country. Someday, I am going to meet and marry a wonderful man and live here happily” (2015, p. 1). The words are surrounded by a drawing of floating bubbles. It is an innocent, ideal existence without any question or doubt until Kanade, a junior high school student, witnesses a street demonstration that her childhood friend Tsuchimoto Sō is involved in. He and others, especially an older female student whom Kanade admires, show her the importance of raising their voice against the “fabricated” history that is being propagated in Japan. Kanade is shaken as she begins to question the content of the history she was taught in school that described the mayhem the Japanese committed during wartime. In the beginning Kanade was a timid young girl who simply believed everything that she was taught. But slowly she begins to see the injustice in being taught an “incorrect” history. Her eyes are opened for the first time and slowly but surely she begins to gain courage. The phrase “proudly hold your head high” [mune o hare] is repeated with each phase of Kanade’s awakening from innocence. Throughout the story she gathers courage to fight back to reclaim the pride and honour of Japan, battle against the injustice of Japanese children being targets of discrimination and bullying abroad due to the comfort women statues and reveal the “lies” that are inundating Japan. This all too familiar narrative instigates her to become a patriot – not being passive and simply believing what is being told but taking an active part through raising her voice against those who threaten to tarnish her ideal of a “true” Japanese existence. The precarious intersection between love for country and hate against those who criticize it is clearly seen in manga-artist Tomita Akiko’s book (2015) Nihon ga suki de naze warui! Haikei, “Hinomaru gaisen otome” kara omoi o komete [“What’s Wrong With Loving Japan! To Whom It May Concern, Thoughts After ‘Young Maiden Hinomaru Street-Demonstration’”], which was a post publication after-thought to her successful manga illustration Hinomaru gaisen otome. She describes her difficult journey of initially getting the manga published and the criticism that she has been a target of by the left-wing who referred to her work as “aikoku poruno” [“patriotic porno”]. She counter-argues that having to defend her right to praise the country she loves is itself grotesque. The phrase “patriotic porno” refers to books, literature and TV programmes that emphasize the greatness of Japan, by critics who insist that blindly praising one’s country while at the same time targeting hate upon others is a form of perverse enjoyment and entertainment. However, when the essence of “Japaneseness” – bushido, Nippon seishin [Japanese spirit], wa [Japan, harmony], the “unique” Japanese cultural

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tradition and the forefathers’ sacrifice – are sacralized to be defended for the sake of the children, the boundary between love and hate becomes increasingly obscure and objective criticism even more difficult. The counterdemonstrators who criticize the patriotic women conveniently play into their narratives as the necessary “unpatriotic” enemy, giving them a meaningful, almost transcendental reason to become a “patriot.” Sanami Yūko (2013) in Joshi to aikoku explains what she herself sees as the essence of patriotism: Essentially, the definition of patriotism is very simple. It means to love the place that one is born and raised. It means to be grateful to one’s parents and honor the grandparents and venerate the ancestors. By having the children carry on this thought, one is also honored by his or her grandchildren and is venerated by the descendants. Thus the [unbroken] continuation and the Japanese have spun together a long history. This is not only in Japan. People of all countries are supposed to be like this. But in Japan, the youth being awakened to such a natural feeling has somehow begun to be called conservative right. And recently young women who are getting involved in patriotic activities have increased. (2013, pp. 12–13) Sanami had an awakening to patriotism after she encountered a young girl who told her about having to reflect upon Japan’s wartime aggression in her classes. What she found particularly disturbing was Japanese children being exposed to the topic of “sex slaves,” which apparently made them uncomfortable. Even worse, according to the young girl, after learning about Japan’s wartime history in school she was not able to look into the eyes of her grandfather who had also fought in the war. If the history that Japanese children as well as she herself had learned and reflected upon in school was true, it meant that their own grandfathers also must have committed such brutal acts. This, Sanami argued, made Japanese children feel shame about their own forefathers, their nation and ultimately themselves as Japanese. Seeing this as an injustice, she decided to get involved in patriotic activism (2013, pp. 61–70). As seen in the various narratives by patriotic women’s groups’ messages in the form of street oratory and internet posts, writings in books and creative illustrations, the process of awakening is only half the inner journey. According to Hasumi Toshiko’s 2015 manga “Sō da nanmin shiyō!” [“Right, Let’s Pretend to be a Refugee!”], becoming a patriot means to raise one’s voice against the “foreign” attackers of Japan, for example, Zainichi Koreans, Korean comfort women, refugees and other foreigners who she believes are pathetically pretending to be victims. After going through a list of the so-called “victims,” illustrated exaggeratingly provocative, a young Japanese girl in her school uniform appears as the last scene. It is dusk. The young girl with hair pins gently pulling back her bangs from her small face, pushing her bicycle, is seemingly on her way home from school. But her expression is worrisome and uneasy as she peers anxiously

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around her. The scenery resembles any street in any town in Japan. Her silent thoughts written next to the illustration reveal her anxiety. The other day, all the Chinese cabbages in our field were stolen. Recently, in front of the train station, I witnessed a woman almost being kidnapped by some foreigners. I was so afraid that I ran away without being able to say anything. The enemy of Japan is me. (2015, p. 44) Hasumi ends her manga with the crux of a message that arguably represents the ultimate raison d’être of the self-proclaimed Japanese patriotic women: Even after being a victim of something absurd, never lay down and cry, and if something is not right than raising one’s voice to say “it is not right” is vital. The real enemy of Japan are “Japanese who pretend to be indifferent.” (2015, p. 45) In this sense, a patriot never plays the victim role and instead, proudly holding her head high, fights back.

Conclusion As hate speech becomes more recognizable and prevalent in many parts of the world, counter movements are simultaneously growing. However, when hate speech is disguised as defending and sustaining one’s culture and tradition, its true message of excluding the “inferior” other as a way of achieving a “consanguineous” national identity becomes more subtle and difficult to recognize. The patriotic women’s narratives elucidated in this chapter clearly reveal that combining a powerful social discourse about nation and belonging deeply embedded in Japan’s history and social fabric with messages of exclusion and hate has long-lasting and perilous consequences within the cycle of discrimination. In the name of aikoku – love of country – these Japanese patriotic women venerate their vision of “Japaneseness,” uncaring how hurtful and injurious their speech may be to the excluded other. Their words and actions demonstrate that overzealous devotion to an imagined nation can be a dangerous tool to disseminate hate.

Notes 1 An expanded version of parts of this chapter can be found in Kim-Wachutka (2019). 2 Tom Gill prefers the term Action Conservative Movement (ACM) [kōdō suru hoshu undo] used most often in Japanese academic discourse because “ultra” implies a quantitative increase in the degree of extremism – right, far right, ultra-right. Also, ACM demonstrations differ from the militant-style of the older ultra-right groups in Japan, emphasizing instead a citizen’s movement (2018, pp. 175–176). However, in this chapter I utilize the phrase ultra-right because of its broader international usage.

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3 When Zaitokukai was first founded in late 2006, it had only 30 members. By March 2007, it had 1,000 and by April 2011, this number had grown to more than 13,000 nationwide (Ito, 2014, p. 435). According to Maeda (2013b, pp. 11–12), several events in 2009 marked the height of the organization’s activities. After the Calderon Incident, in which the daughter of Filipino migrant workers was allowed to remain in Japan while her parents were forcibly deported, Zaitokukai’s membership grew. In the Mitaka Incident in August, members of Zaitokukai demonstrated outside the Information-Gathering Meeting for Japan’s Military Sexual Slavery System and prevented people from entering or exiting the assembly. In the Akihabara Incident the next month, the group demonstrated in support of the expulsion of foreigners and violently clashed with counter-protestors. In October, they entered the Chōsen Daigakō [Korea University] in Tokyo, spouting hate speech. In December, Zaitokukai members gathered outside Kyoto Chōsen Daiichi Shokyū Gakkō [Kyoto No. 1 Korean Elementary School] and conducted the now infamous protest in the Kyoto Chōsen School Attack Incident. 4 Ultra-right-wing individuals spreading hate on the Internet [netto uyoku] typically remain anonymous (see Yasuda, 2015). However, even elite members of Japanese society, specifically those in politics, play a role in spreading extreme viewpoints. Ito (2014, p. 435) points to the July 2013 election for the upper house of the National Diet, in which Suzuki Yoshiyuki, the leader of an extreme right-wing party, gained 77,465 votes in the Tokyo metropolitan area, as one example of the increase in citizens supporting xenophobic and exclusionist policies. 5 Translations of Japanese texts into English are my own. 6 Inoue Atsushi (2002) and Ueda Masaaki (2002) argue that the belief that Chōsen and Japan had a particularly good relationship during the Edo period’s Korean envoys to Japan [Chōsen tsūshinshi] is not entirely true. Indeed, the envoys were welcomed and celebrated by the receiving prefectures, but the association of Chōsen with high culture – in the form of knowledge, craftsmanship and skill – was intermingled with a political and historical desire for conquest that can be traced back to ancient times. Ronald P. Toby cites scholar Tanaka Takeo to explain that in the seventeenth century, the goal of Japan’s relations with Korea was “neither books, nor technology, nor profit, . . . but the establishment of [an] international order” that positioned Japan at its centre (1991, pp. 218–219). The Korean embassies to Japan, Toby posits, were intended to showcase Japan’s grandness and assert the centrality of its power. 7 Inoue explains that as early as the ninth century, Shiragi, one of Korea’s ancient kingdoms, was considered “another country and [a] different type of being” [takoku irui], meaning “another race” [chigatta jinrui] (2002, p. 204). The derogatory word Senjin, used during the colonial period, can be traced back as far as the time of Toyotomi Hideyoshi (1536/37–1598). However, Inoue notes that the use of the phrases Shiragi seibatsu [Shiragi conquest] and Sankan seibatsu [Three Kingdom conquest] even before Hideyoshi, in the time of legendary Empress Jingū-kōgō, reveals that Japan has long viewed Korea in terms of subjugation and acquisition. 8 A yamato nadeshiko, or nadeshiko for short, is an ideal woman who displays the traditional graces and feminine virtues of old Japan. The group’s official name in Japanese is “Nadeshiko Akushon,” however in their activities abroad they use the English equivalent “Nadeshiko Action.” I will use the latter throughout the text. 9 This is the total number of members in the main and sub-branches throughout Japan as of January 14, 2020. 10 Her real name is Suzuki Yukiko. See Yamaguchi (2018, p. 204). 11 The main branch of the Zainichi Korean ethnic organization Mindan is compiling a list of all Korean memorials and monuments throughout Japan to protect them. However, Soyokaze credits itself for the initiation of such a list, which they feel is an indirect result of the lawsuit in Gunma Prefecture. 12 Previously these videos could be seen on YouTube. However, since early 2018, they have been removed and now Hanadokei’s uploaded videos of their activities

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can be seen on its webpage at Niconico dōga: http://com.nicovideo.jp/community/ co1603869. 13 In May 2013, Osaka Mayor Hashimoto Toru made headlines when he said that comfort women had been necessary for the Japanese military; see Tabuchi (2013). 14 Despite strong objection from Japan and local Japanese residents, the comfort woman statue, a bronze monument of a young girl wearing the Korean dress chŏgori, sitting next to an empty chair, was unveiled in Glendale, California, on August 2, 2013. Similar memorials were to follow in other parts of California, New Jersey and New York. See Yamamoto and Culross (2013). In August 2014, a lawsuit against Glendale to remove the statue from the city park was dismissed.

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Matsuda, K. (2015). Patriotism and nationality in nineteenth-century Japanese political thought. In J.-H. Kwak & K. Matsuda (eds.) Patriotism in East Asia (pp. 65–82). London: Routledge. Nakamura, I.-S. (2014). Chōsengakko shōgeki jiken: Heito kuraimu ni kōshite [Hate Crime Incident Against Korean School]. Tokyo: Iwanami Shōten. Oka, M. (2018). Nihon no teki o ima shiru tame no 150-mon 150-tō [150 Questions and 150 Answers to Know Now Japan’s Enemy]. Tokyo: Seirindō. Okada, I., & Tomita, A. (2015). Hinomaru gaisen otome [Young Maiden Hinomaru Street-Demonstration]. Vol. 1. Tokyo: Seirintō. Okada, I., & Tomita, A. (2016). Hinomaru gaisen otome [Young Maiden Hinomaru Street-Demonstration]. Vol. 2. Tokyo: Seirintō. Okada, I., & Tomita, A. (2018). Hinomaru gaisen otome [Young Maiden Hinomaru Street-Demonstration]. Vol. 3. Tokyo: Seirintō. Onuma, Y. (2002). Japanese war guilt and postwar responsibilities of Japan. Berkeley Journal of International Law, 20(3), 600–620. Pak, S.-N. (2014a). “Jūgun-ianfu wa uso!” o sakebu okusama-tachi [The wives who yell, “Military comfort women are a Lie!”]. In Okusama wa aikoku [Wife Is a Patriot] (pp. 32–50). Tokyo: Kawade Shobō Shinsha. Pak, S.-N. (2014b). Makoto no Nihonjin de aru tame ni – 30-dai OL Sayaka to Chūgoku [In order to be a true Japanese – Sayaka, an office lady in her 30s, and China]. In Okusama wa aikoku [Wife Is a Patriot] (pp. 70–84). Tokyo: Kawade Shobō Shinsha. Parker, C. S. (2010). Symbolic versus blind patriotism: Distinction without difference? Political Research Quarterly, 63(1), 97–114. https://doi.org/10.1177/1065912908327228 Penney, M. (2012, December 31). “Racists go home!”, “Go crawl back to the net!” – Antiracism protestors confront the Zaitokukai. The Asia-Pacific Journal: Japan Focus, 10(54), 146. Retrieved from https://apjjf.org/-Matthew-Penney/4758/article.html. Sakurai, Y. (2015). Nihonjin ni umarete yokatta [Thank Goodness for Being Born as a Japanese]. Tokyo: Goku Shuppan. Sanami, Y. (2013). Joshi to aikoku [Young Women and Patriotism]. Tokyo: Shōtensha. Saotome, K. (2018). Netsuzō no rekishi o nokosu na! Chōsenjin irei-hi o tekkyo shiyō [Do Not Leave Behind the History of Fabrication]. Retrieved February 26, 2019 from www. youtube.com/watch?v=5iJ3ctjirjE. Saotome, K. (n.d.). Retrieved February 26, 2019 from http://detox-nippon.jp/index.html. Smith, N. M. (2018, August 22). Fights on the right: Social citizenship, ethnicity, and postwar cohorts of the Japanese activist right. Social Science Japan Journal, 21(2), 235–257. https://doi.org/10.1177/1065912908327228. Soyokaze. (2018, October 2). Netsuzō ‘Chōsenjin ireihi’ o tekkyo shiyō! In Shin-Iizuka ekimae [Let’s Remove the “Chōsenjin Memorial Monument!” in Front of Shin-Iizuka Train Station]. Retrieved from http://blog.livedoor.jp/soyokaze2009/archives/51901394.html. Soyokaze. (2019, January 18). Ima koso Nihonjin e no heito supīchi o stoppu dekiru chansu [Now Is the Chance to Stop the Hate Speech Against Japanese]. Retrieved from http://blog.livedoor.jp/soyokaze2009/archives/2019-01-18.html. Soyokaze. (n.d.). Retrieved February 12, 2019 from www.soyokaze2009.com/. Sugita, M., & Yamamoto, Y. (2017). Josei dakara koso kaiketsu dekiru ianfu mondai [Comfort Women Problem that Can Be Solved [by us] Precisely Because We Are Women]. Tokyo: Jiyūsha. Suzuki, T.-M. (2013, February 25). Freedom of hate speech; Abe Shinzo and Japan’s public sphere. The Asia-Pacific Journal: Japan Focus, 11(8), no. 1. Retrieved from https://apjjf.org/2013/11/8/Tessa-Morris-Suzuki/3902/article.html.

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Tabuchi, H. (2013). Women forced into WWII brothels served necessary role, Osaka Mayor says. New York Times, May 13, 2013. Retrieved from www.nytimes.com/2013/ 05/14/world/asia/mayor-in-japan-says-comfort-women-played-a-necessary-role.html. Toby, R. P. (1991). State and Diplomacy in Early Modern Japan: Asia in the Development of the Tokugawa Bakufu. Stanford, CA: Stanford University Press. Tomita, A. (2015). Nihon ga suki de naze warui! Haikei, “Hinomaru gaisen otome” kara omoi o komete [What’s Wrong With Loving Japan! To Whom It May Concern, Thoughts After “Young Maiden Hinomaru Street-Demonstration”]. Tokyo: Wanibukkusu. Ueda, M. (2002). Kojiki kara kangaeru “Zainichi” [“Zainichi” considered from the Kojiki]. Kan: rekishi / kankyō / bunmei, 11 (Special issue: Rekishi no naka no Zainichi [Koreans in Japan Throughout History)), 46–50. Weiner, M. (2009). “Self” and “other” in imperial Japan. In M. Weiner (ed.) Japan’s Minorities: The Illusion of Homogeneity, 2nd ed. (pp. 1–20). London: Routledge. Yamaguchi, T. (2018, August 22). Revisionism, ultranationalism, sexism: Relations between the far right and the establishment over the “comfort women” issue. Social Science Japan Journal, 21(2), 193–212. https://doi.org/10.1093/ssjj/jyy014. Yamamoto, J. K., & Culross, M. K. (2013). Comfort women monument unveiled in Glendale. The Rafu Shimpo Los Angeles Japanese Daily News, August 2, 2013. Retrieved from www.rafu.com/ 2013/08/comfort-women-monument-unveiled-in-glendale/. Yamamoto, Y. (2014). Josei ga mamoru Nihon no hokori [The Pride of Japan Defended by Women]. Tokyo: Seirindō. Yasuda, K. (2013a). Zaitokukai o oikakete [Pursuing Zaitokukai]. In Naze, ima heito supīchi nano ka: Sabetsu, bōryoku, kyōhaku, hakugai [Why Hate Speech Now: Discrimination, Violence, Terror and Persecution] (pp. 29–30). Tokyo: Sanichi Shobō. Yasuda, K. (2013b). “Chōsenjin o korose!” Shin-Ōkubo “Heito supīchi dantai”-tte nani mono? [“Kill the Koreans!” What is Shin-Ōkubo’s “Hate Speech Organization?”]. Shūkan Bunshu, April 18, 2013: 132–135. Yasuda, K. (2015). Netto to aikoku [The Internet and Patriotism]. Tokyo: Kōdansha. Yoshikata, V. (2015, July 27). “Comfort women” denial and the Japanese right (translated by Julie Higashi; introduction by Norma Field and Tomomi Yamaguchi). The AsiaPacific Journal: Japan Focus, 13(30), no. 2. Retrieved from https://apjjf.org/2015/13/ 30/Yoshikata-Veki/4350.html.

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4

Banal misogyny Inventing the myth of “women cannot drive” and its online hate speech in South Korea1 Hyojin Jeong and Younghan Cho

Introduction In this chapter we discuss the habitual expressions, ordinary units of words and implicit but repetitive ways of representations in the crime reportages in South Korean mainstream news media. By examining the news coverage of seemingly gender-neutral crimes such as wrong-way driving, this chapter illustrates that the prevalent discourse of crime reports contributes to the reproduction of misogynistic values and frameworks. In so doing, we argue that not only conspicuous, contested and volatile debates, but also routine, prosaic, dull and unremarkable depictions can construct a particular structure of antipathy against women, which we refer to as banal misogyny. Finally, we suggest that the perspective of banal misogyny allows us to designate the media as a catalyst for generating online hate speech against women. Notably, the case of a woman who was murdered in a unisex bathroom in the Gangnam area of Seoul on May 17, 2016 is considered to have sparked the discussion of misogyny in South Korea (hereafter Korea) (Lee, N., 2016). The ensuing events of commemorating the victim and deliberation on the case sparked highly heated debates. Furthermore, several crimes and instances of violence against women have attracted public and media attention, often with a close connection to such issues as gender inequality and hostile conditions towards women. Meanwhile, misogyny has become one of the most controversial issues in South Korean public discourse both online and offline. At the same time, various forms of hate speech against minority groups including women, migrants and LGBT (lesbian, gay, bi-sexual and transgender) groups have attracted public concern. Certain cases, such as when members of an ultra-conservative online community Ilbe (www.ilbe.com) engaged in a public protest, demonstrated how the issue of hate speech has attracted serious and substantial attention from both mass media and academia. However, misogyny and hate speech against women in Korea are not recent phenomena or the outcomes of recent structural changes in the country. Instead, related issues and structural problems have existed for many decades but had been systematically ignored. Therefore, it is fair to say that the mainstream news media began to frame misogyny as a public issue in the past

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couple of years and that misogyny is even utilized for marketing purposes (Kim, S., 2015). This overdue attention to misogyny in the public discourse seems to symbolize the salience and embeddedness of misogyny in contemporary South Korea. Moreover, it needs to be noted that mainstream news media have employed misogynistic and gender-biased methods of reporting in the previous decades before misogyny became a contemporary focus. As will be discussed in later sections of this study, the methods of reporting the crimes against women in particular are representative of how the mainstream news media perceive and describe women. For instance, the manner of depicting women as helpless victims, juxtaposing victims and perpetrators, treating male perpetrators as social monsters and describing crime scenes in a vivid way are both habitual and crucial for the construction of people’s understanding of the nature of the crimes and their social implications. In order to highlight the urgency of a new approach to the conventional representation of women in the mainstream news media and the connection with hate speech, we examine two interrelated phenomena on reporting car accidents. The first is an exploration of the semantic evolution of the term Kim-yeosa [“Poorly skilled woman driver”] while the second is an examination of the responses to traffic accidents, which are full of various hate speech against women. Rather than employing the media frame approach, we articulate the term banal misogyny to illuminate gender bias of crime reports in mainstream news media. In so doing, we suggest that the repetitive, symbolic, routine and even non-threatening terms and narratives aid reproduction of the prevailing misogynistic perceptions in a similar manner to online hate speech in South Korean society. The idea of banal misogyny highlights the necessity of re-thinking media reportage through the lens of misogyny, as well as the close connection between genderbiased representation in mainstream news media and hate speech against women online.

Misogyny and hate speech in South Korea Misogyny as a key issue in contemporary South Korea In South Korea, misogyny needs to be understood in the context of the breakdown of hegemonic masculinity, the crisis of the patriarchal family, the collapsing myths of the middle class and the replacement of men as breadwinners since the 1990s.2 As South Korea underwent economic and cultural globalization and subsequently experienced an economic crisis due to a shortage of foreign currency, the traditional roles of men, masculinity and family faced substantial challenges. Economic globalization tends to have mixed effects on women: it has incorporated a large number of women into the workforce, but as the state faced an economic crisis, women became very vulnerable to unemployment and redundancy (Moon, 2000). Nevertheless, the steady changes in the economic, political and cultural dimensions after the 1990s posed a serious challenge to hegemonic masculinity, which can be identified with hyper-masculinity based on

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developmentalism (Han & Ling, 1998). As the government rebounded from the economic recession in the new millennium, Korean males often became objects of mockery and sympathy. Either way, it seems unavoidable for hegemonic masculinity to be undermined. Simultaneously, men as a traditionally privileged group are facing both a crisis and a challenge from competition with women and are experiencing the uncertainty of whether they can earn enough money to start their own families. Such an unprecedented crisis in maintaining their masculinity has become the root of the wide engendering of misogyny, genderbased violence, hate speech against women and even femicide. In this vein, widespread conditions and practices of misogyny are not only a historic consequence but also a series of backlash against Korean women in the new millennium (Faludi, 1991). However, misogyny is still an unfamiliar concept in South Korea, although the term is spontaneously and widely mentioned by various groups such as journalists, scholars, feminist activists and the wider public. According to Son (2018), misogyny has been used as critical term since April 2012, and one of the critical momentums was the publication of a translated book entitled Onna Girai – Nippon no Misogyny (2012) by Japanese sociologist Ueno Chizuko. Ueno (2012) highlights that the meaning of misogyny is often misunderstood as simply disliking or hatred of women; instead misogyny can be identified with an othering and objectification of women which ultimately leads to regarding women as sexual objects and negating their agency. While she utilizes literary examples, social phenomena and grotesque criminal cases from contemporary Japanese society, her definition of misogyny provides a valid perspective on Korean society. Son, Heejung (2018), a Korean feminist scholar, also defines misogyny not as a hatred of women but as a typical culture or structure that discriminates against women by universalizing men as the superior other of women. Therefore, acts of misogyny are predicated on the assumption that women are weak beings in need of men’s protection as well as inferior beings who are not equal to men. At the same time, misogyny is related to the objectification of women: according to Nussbaum (2012), the term objectification has not always been clear and elaborated although it has long been an important concept for feminists. In gendered contexts, objectification is the consideration of women as a means to an end rather than ends in themselves.3 The target of objectification would have their identity damaged and shamed. Though it is morally reprehensible, the objectification of women is commonly practised by the media every day. In this vein, a misogynistic ideology regards women as exclusively sexual and reproductive tools while negating women’s agency and desires. Furthermore, misogyny entails sexism because misogyny functions as rooted prejudices against women, any thoughts of stigmatizing women and of treating women as inferiors and the societal and structural foundation for sexism (Lee, N., 2016). The meaning of misogyny in South Korea is easily confused with sexism or even sexual harassment. Misogyny is also related to the dynamics of emotion, cultural norms and affects which in turn help to construct gender-discriminated

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structures (Lee, N., 2016). Through the lens of media, if a certain group is represented as one fixed stereotype, it would damage the readers’ own creative perceptions and engender fear and hatred (Emcke, 2017/2016, pp. 77–82). Consequently, misogynistic representations provide and nourish the basis of hate speech. They reproduce cultural norms and an ideology that both cement gender-bias and gender discrimination in society, as well as catalyzing the explosion of hate speech against women. In mainstream media, misogyny is not easily recognized because it is sustained not so much through explicit contestations, but through implicit, unnoticed and even familiar depictions. However, reporting on women that is habitually objectifying may produce the structure of misogynistic feelings that functions “as a deep principle to (re)produce gender discrimination and androcentric society” (Lee, N., 2016, p. 186). Traditional and various ways of depicting women in mainstream news media are not precisely categorized as hate speech but they nurture and coexist with hate speech by narrowing reality. Misogynistic discourses in mainstream news media In South Korea, as discussed, misogyny seems to be omnipresent, but it is neither easily recognized nor accepted as such. Such a condition reflects a stereotypical oxymoron in relation to gender issues: due to their ubiquity, people hardly notice and understand their existence, dynamics and influences on thoughts, judgements and practices. Similar to the ways in which (hyper-)masculinity, patriarchy and even militarism have overshadowed Korean society but simultaneously have been denied or unproblematized, misogyny is also dismissed or often denied. It is often alleged that the current debates on misogyny are exaggerated or wrongfully utilized for denouncing innocent people. It is no longer unusual to encounter rhetoric of reverse discrimination to deflect the main agendas or even to defend male’s rights. Particularly on the internet, misogynistic discourses have been constructed and reproduced in the service of strengthening male solidarity and popularizing hate discourse against women (Kim, J., 2018). In this vein, it is both urgent and important to provide a nuanced approach to illuminate how misogyny has been both overtly and mundanely exercised to induce hate speech against women in South Korea. As Noble points out in the discussion of racism, “little analytical attention is given to the mundane, every routine forms of harassment” (2005, p. 111). Therefore, we suggest the term banal misogyny as an alternative approach for problematizing and revealing misogyny and its dynamics with hate speech, and also identify mainstream news media as a representative arena for explicating this issue. For the past couple of decades, South Korean scholars have pointed out the problems of mainstream news media, particularly relating to how crimes against women are reported. By highlighting the contributions as well as limitations of these studies, we discuss the applicability of misogyny as well as the advantage of deploying banal misogyny as a theoretical frame for analyzing news reports relating to crimes against women.

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Firstly, the existing studies effectively highlight the bias underpinning the reporting of crimes committed against women by male offenders (Hur, 2007; Hyun & Kim, 2005). By finding repetitive and systematic media framing in reporting the crimes, the studies contribute to the revelation of gender-biased discourses and patriarchal values beneath a facade of objectivity. For instance, Hong (2009) analyzed the main news frames of the reports relating to crimes against women into three elements: 1) the description focussing on the perpetrators’ actions, and detailed representation of sexual harassment, including visualizing the crime scenes; 2) highlighting the responsibility of female victims along with objective reports on male offenders; and 3) exceedingly abstract reports on domestic cases. In their habitual ways of representation, the news media produce a gender discourse which tends to blame female victims, render women helpless and powerless and perpetuate a patriarchal perspective along with sensational reports and entertaining gossip (Kim, H., 2004). These studies underscore that the reports tend to essentialize gender difference, discriminate against women, adhere to women’s purity and cement patriarchal ideology. Another important finding of these studies is to point out the ways of alienating or objectifying women in the reports. In the mainstream news media, these studies demonstrate how women are objectified through perpetrator-centricity and the perspective of male writers. Kim and Jang argue that the mainstream news media alienate women and describe them as negative images, resulting in a distorted cultural depiction of women (2011, p. 8). While rationalizing the misdeeds of the offenders, these reports burden women with the responsibility of protecting themselves and reprimand women for their own negligence. Such media framing of the reports endorses patriarchal stereotypes that males are sexually active and females are passive. In addition, these reports blunt awareness of the seriousness of the damage done by vividly describing the sexual offences’ prurient and entertaining dimensions (Kim, H., 2004, pp. 87–89). These studies also point out that the commonplace conventions of journalism also produce a gender-biased culture. They show the procedures in which specific stories are reported and illustrate how journalists choose to talk about and quote the actual articles. These studies argue that the mainstream news media reports are usually produced by male reporters and tend to reproduce gender-biased stereotypes and culture (Kim & Jang, 2011, p. 8). Such critiques highlight not only the dominance of male reporters but also masculine culture and traditions in the process of news making. While the existing studies successfully demonstrate gender bias permeating reports relating to crimes against women, they still do not make a meaningful connection between the reports and the issue of misogyny in mainstream news media. One exception is a study on the reports of the murder case of a woman in the Gangnam area: Hong finds that the progressive newspapers “identified the same incident as an extreme case of misogyny that is experienced because the individual was a woman” while the conservative newspapers “defined this incident as a wanton murder by a mental patient” (2017, p. 218). As a result, most suggestions of the studies are limited to the issues pertaining to journalism

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such as blaming the patriarchal customs and habitual practices in news making in South Korea. Rather than continuing with a similar approach based on media framing, we underscore the necessity of problematizing the repetitive and habitual conventions of media reports through the lens of misogyny. As discussed, contemporary news reports share many elements of misogyny such as the objectification of women as both sexual targets and helpless victims, while at the same time denying the desires or agency of women. In so doing, these reports continuously and repetitively reproduce a gender-biased, patriarchal and sexist framework. Inspired by Billig’s discussion on nationalism and its banality (1995), we suggest that the mainstream news media and the reports on crimes against women endorse and naturalize common sense, norms, perspectives and even institutions of misogyny, which we suggest referring to as banal misogyny. In the mainstream news media, therefore, banal misogyny consists not only of blatant, contested and conspicuous debates, but also everyday, prosaic, and unremarkable depictions. Furthermore, this approach of banal misogyny helps us understand the various kinds of hate speech against women online and the dynamic between the mainstream news media reports and the various levels of hatred present in the responses. In many South Korean news reports, misogyny is not easily recognized because it is sustained not so much through explicit contestations, but through implicit, unnoticed and familiar depictions. The media reports, which do not contain any overtly sexist or misogynist language, function as a catalyst for hate speech against women, which is particularly evident in the online responses to the articles. While the news reports reflect and reproduce banal misogyny, the online responses are interpreted as the expression of misogyny in the form of hate speech. In so doing, the news reports not only produce a gender-biased frame but also actively catalyse misogynistic speech, discourse, affects and even practices. Banal misogyny reproduces cultural norms and ideology that both cement gender-bias and gender discrimination in society and promulgate the explosion of hate speech against women online. Banal misogyny needs to be taken seriously because it is complicit in the reproduction of blatant, threatening and institutionalized expressions of misogyny, such as those readily found in cases of online hate speech.

The invention of Kim-yeosa (Mrs. Kim), the “terrible female driver”4 Over the past two decades, new jargon that expresses a hatred of women has been invented and widely circulated in Korea, and one of the conventional ways is to coin “a series of derogatory terms for women based on the word -nyeo (girl/ woman)” (Kim, J., 2018, p. 156). Well-known examples include gaeddongnyeo (dog poop girl), doenjang-nyeo (soybean paste girl) and kimchi-nyeo. In the mid 2000s, for instance, the term doenjang-nyeo was widely used to describe a vain woman who prefers expensive high-end products and thoughtlessly buys

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conspicuous luxury goods. Many derogatory terms including -nyeo have been employed both in everyday conversation and in mainstream media. These new vocabularies are mostly satirical, derogatory and sexist expressions against women, which typically constitute misogynistic discourse. This section examines the process of inventing and popularizing another neologism, i.e. Kim-yeosa (Mrs. Kim) as well as counter-responses to it, in order to illuminate how banal misogyny is incorporated and activated in the mainstream media. To trace the invention of Kim-yeosa and its various usages in the media, this study searched for news articles published between 1995 and 2017 that include this term using the NAVER news archive.5 The literal meaning of Kim-yeosa is a lady with the surname Kim: Kim is the most common family name and yeosa is an honorific title for married women. The combination of such innocent words has nothing to do with misogyny, thus many news articles still use the label Kim-yeosa to indicate an honourable lady with the surname Kim, including a couple of the first ladies in South Korea. At the same time, Kim-yeosa has acquired another meaning which refers to inadequate female drivers or often those of the older generation who are clumsy on the road. An English news article describes Kim-yeosa as a “female driver [who] doesn’t abide by traffic rules, gets involved in car accidents, or is unskilled at parking.”6 It was in 2006 that Kim-yeosa began to acquire a new meaning in Korea. In his study on insulting expressions in Korean cyberspace, Lee, J. (2010) found that the first usage of Kim-yeosa as a reference to bad drivers originated from a comedy show in 2006, which depicted a female boss who makes ridiculous demands of her male driver. Such a finding corresponds to our research on the media news reports: between 1995 and 2005, we found 71 news articles that used the term Kim-yeosa, but none of them implied that the woman in question was a bad driver. Lee, J. categorizes four types of insulting expressions against women that reflect different aspects of shaming based on women’s attributes such as ability, appearance, behaviour and attitude (2010, p. 221). It is not clear whether this particular comedy show provided a critical momentum for popularizing the new meaning to Kim-yeosa, but it is easily deduced that, in this comedy show, women are not considered reliable and are conceptually reduced to certain negative or inferior attributes. Such a neologism and its underlying reasoning exemplify a case of objectifying women, which is a representative way of practising misogyny. From 2006 onwards, the label Kim-yeosa was substantively employed to communicate the derogatory meaning of a bad female driver in news journalism. Between 2006 and 2010, we found 34 articles that used the new meaning out of 252. It is notable that, among the top 30 articles sorted by relevance, 14 articles refer to Kim-yeosa as terrible female drivers. These articles with the new meaning are categorized into two groups: one is for an educational purpose and the other is for entertainment. The first group usually provides driving tips and lessons, which are useful for any kind of driver, not just for women in particular. The latter includes a selection of photos depicting ridiculous parking and driving mistakes.

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One of them introduces American female drivers’ wrong-way driving, which is presented as daily entertainment rather than serious accident reports. Although there is no evidence that proves that the drivers in these photos are women, these articles take it for granted that women drivers are the ones responsible by deploying the term Kim-yeosa in the articles. The ways of using Kim-yeosa in news media indicate that Kim-yeosa began to acquire a new meaning to certain degrees and that its new concept was still soft and humourous, even expressing friendly concern. However, it is still misogynistic in that the news articles generalize women drivers and undermine their driving abilities, which they present as being inferior to that of men. As a matter of fact, four articles include a critical discussion of its new meaning and related controversies which convey stereotypical and inferior images of women. At this stage, the new concept of Kimyeosa was soft and humourous, perhaps even patronizing. However, behind the screen of jocular and friendly concern, its new meaning began to take shape in South Korean society. Between 2011 and 2015, the neologism, i.e. Kim-yeosa with the added derogatory meaning, was widely and dominantly used in the mainstream news articles: 530 articles out of 737 carried this meaning, and, among the top 30 articles, sorted by relevance, 25 articles used this term. The increased number of articles shows that the neologism not only retained the usage of its original meaning, but also that its derogatory term is adopted habitually and daily in news media. Similar to the previous patterns, the tones of these articles were light and jocular and featured international cases of Kim-yeosa. However, the persistent and repetitive depiction of clumsy, blatant and shameless female drivers started to trigger hostile and angry reactions. At the same time, the news reports reported diverse and even severe criticism against this term. For instance, several articles provide data of the low accident rate of women drivers compared to male drivers, and there were examples of incidents where the blame was wrongfully attributed to women. It is no exaggeration to say that Kim-yeosa cannot be used without referring to terrible female drivers, and, following preceding labels ending in nyeo, Kim-yeosa has come to be recognized as another derogatory and misogynistic term. After May 2016, when the issue of misogyny emerged as a social and public issue in Korea, the number and pattern of using Kim-yeosa as a derogatory label were quite similar. Between 2016 and 2017, we found that 121 out 443 articles applied the new meaning. During this period, news media also included the feminist position for the term Kim-yeosa: it argues that Kim-yeosa has a misogynistic aspect by defining female drivers based exclusively on their gender regardless of their individual abilities. As an alternative to this trend, the articles emphasize that it is necessary to discontinue the use of this term, or to clearly expose the misogyny embedded in this term. In the name of fair or unbiased reportage in journalism, however, the mainstream media do not forget to mention the counter opinion against the feminist groups. It is notable that one report introduces a strong backlash against the feminist argument that adheres to political correctness concerning the discourse of Kim-yeosa.7 The backlash discourse in the

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article attacked the web-feminists for becoming monstrous and harming other minorities such as children and the disabled. Such backlash discourse tends to regard radical feminist groups as criminals and wants to keep the demands of feminists at a moderate level. In this vein, this article also points out that even if misogyny exists in reality, women should not resort to “misandry” which would result in the spread of more hatred in the society. In mainstream news media, Kim-yeosa efficiently and insidiously performs such derogatory and sexist roles in the depiction of real news and the conception of a typical image. On a superficial level, the news articles express words of concern for clumsy female drivers, which are mostly associated with humour, entertainment and a bit of annoyance. The typical narrative of the articles featuring the term Kim-yeosa combines stereotypical elements and realistic details. In so doing, audiences learn the generalized characteristics of Kim-yeosa through the articles that cover either humourous, ridiculous and even disastrous stories about car accidents caused by female drivers. Such a misogynistic concept also becomes universally applicable to female drivers across the globe through the coverage of international news about clumsy female drivers in foreign countries. The international cases tend to be more extreme and ridiculous to attract people’s curiosity and surprise. In this way, the mainstream news media tend to generalize the inferiority of women’s driving skills all around the world. On the other hand, the news articles also reported on the controversy and criticism against the new meanings of Kim-yeosa by reflecting feminist discourses. Even though there have been plenty of serious opposing arguments with statistical proof, the deeply rooted and consistently reinforced image of Kim-yeosa cannot be removed. The news articles focus on the problems and violence of the term Kim-yeosa rather than the existing issues and social structures that the wide usage of Kim-yeosa as a derogatory term illuminates. In so doing, the mainstream news media conceal the violence of the structure exposed by the criticism of Kim-yeosa, and consequently, they only cement the existing social structure of gender relations. The derogatory meaning has been used in ordinary contexts for humourous, informative and even educational purposes. We suggest that the whole procedure of inventing a new meaning, producing a wide spectrum of emotions and employing the term in a repetitive, habitual and ubiquitous fashion is an example of banal misogyny.

Online hate speech against the female driver This section explores the connection between banal misogyny in the mainstream news media and hate speech against women with a focus on online discourse. As discussed, the invention of Kim-yeosa as a misogynistic term illuminates how seemingly neutral and informative traffic accident reports could spread and normalize a discriminatory discourse. In order to understand the function of banal misogyny, we pay attention to a particular type of traffic accident: wrong-way driving. Compared to the crimes against women such as sexual harassment and violence, wrong-way driving is a seemingly gender-neutral accident or

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crime, but it also represents one of the typical images of Kim-yeosa, such as having no driving skills, and being an irresponsible, unaccountable, incompetent and even dangerous driver. Unlike drunk driving and speeding, which are easily affiliated with male drivers, wrong-way driving tends to be connected with female drivers, and wrong-way driving incidents often provoke overly emotional responses because it could be a cause for fatal accidents. We will examine the connections between habitual practices of reporting a traffic accident and inflammatory, insulting and sexist responses in the online comments to the news articles. We have searched news articles and their online responses through the news platform of NAVER between June 2016 and November 2017.8 We selected 36 articles out of 95 by eliminating the irrelevant cases. It is noteworthy that gender is marked either in the titles or bodies of the news articles usually when the perpetrators of wrong-way driving are women. For instance, 8 articles have either nyeo (female) or yeoseong (woman) in their titles and 6 more articles specify that female drivers are the traffic offenders. Meanwhile, only 2 articles mention that the drivers who caused the accidents were male, not in the titles but in the articles themselves. Furthermore, all the articles that have male markers discuss the car accidents committed by under aged men by using the terms of kun (boy) or shipdae (teenagers). In other words, the male markers are not simply used to refer to the drivers’ gender, but for specifying certain age groups such as minors or adolescents. Meanwhile, 21 articles out of 36 have no gender markers. Given the journalistic convention that the general or universal subject is male, it can be speculated that the subjects in the articles with no gender markers are males. Then, such disproportionately high number of articles with female markers means something: this number is more striking upon checking the annual data of wrong-way driving. According to the statistics from the Police Database, the numbers of wrong-way driving by male drivers are 9,648 in 2015 and 8,557 in 2016, which are quite a contrast compared to the numbers by female drivers: 2,141 and 2,027 respectively.9 While wrong-way driving was committed more than four times more often by men, the news reports highlight only female drivers, cementing the stereotypical images of female drivers, i.e. Kim-yeosa. Among the news articles with female markers, an accident that took place on August 27, 2016 attracted a large degree of media attention and wider public comments. All of the nationwide newspapers published articles on this accident, and every single title highlights certain characteristics of the perpetrator such as Table 4.1 Wrong-way driving accident reports Wrong-way Driving Accident Reports With Gender Marker

Female marker (14) Male marker (2)

Title Body Body

Without Gender Marker *One article included both female and male minor marker in the body.

8 6* 2*

15 21

36

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yeoseong (female), age (thirties) and manchui (fully drunk). Among the articles, one report10 had a total of 632 comments in the news platform of NAVER.11 The online responses to this specific news report involving a female driver in a wrong-way driving incident provide a window for observing the substantial relation between banal misogyny, derogatory terms and online hate speech. Compared to the news articles, anonymity is guaranteed in the responses on NAVER, which enables people to express their thoughts and arguments freely and thoughtlessly. Nonetheless, NAVER provides some background information of the commentators who leave responses to any articles such as their gender and age range. One important function of the comments is that they are displayed by order of popularity, which people can choose by clicking either the “I like” (thumb up) or the “I disagree” (thumb down) button. The patterns of the online comments to the article reveal several intriguing points. Among the commentators, 73% of them were men while 27% were women, and the majority of the commentators were in their 30s (41%), followed by 40s (28%), 20s (18%) and 50s and over (12%). Also, 131 comments were erased by the authors who left the comments, so a total of 496 comments remained on the date of access.12 Heuristically, it is inferred that several markers in the title such as female and drunk efficiently elicit male attention as well as comments. The comments mostly paid attention to the fact that the wrong-way driver was a woman: several words that refer to woman, women and female appeared more than 100 times, most of which were used for negative purposes. Several of them tend to generalize female Korean drivers as insensible, weird and inferior, for instance: “recently, ‘odd traffic accidents’ make more sense with ‘woman’,” and “has ‘to be a woman’ become the same thing as ‘to be weird?’” Some of them utilize pseudoscience or fake information to criticize female drivers. A couple of comments say, “women’s spatial awareness is worse than men, and this is scientific FACT,” and “women cause wrong-way driving accidents more than men.”13 Similar to the backlash as discussed by Faludi, these comments attack and generalize women by “deploying both the ‘new’ findings of ‘scientific research’ and the dime-store moralism of yesterday” (1991, p. xviii). As Kim argues in her discussion of online misogyny, the consistent referencing of women, woman and female is “part of a process of establishing new targets of misogyny” (2018, p. 157). It is no surprise that the term Kim-yeosa appears here, in 31 comments. Among other misogynistic neologisms, Kimchi-nyeo was used to insult and denigrate females.14 Both Kim-yeosa and Kimchi-nyeo are newly invented and widely used terms which have been generally regarded as misogynistic. By generalizing about Korean women drivers, therefore, some comments explicitly express their anger or disgust against women along with these neologisms. What is worth noting is that the NAVER platform does not ban the usage of these terms because they are not classified as profanity or hate speech. Furthermore, it is possible to circumvent the bad on curse words: for instance, some users modified the forms of the curse words by borrowing Chinese characters

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or English words to create similar sounds to the Korean curses.15 These expressions are twisted but elaborate puns in order to insult female drivers and express the commenters’ hostility towards them. Also, these modified curses help to avoid automatic monitoring and screening while they earn recognition and admiration from other commenters for their so-called “wit.” Some comments even utilized the word “nyeon” (bitch), which is a typical curse word used in hate speech degrading a woman and expressing the violent desire to beat the offender. Another remarkable conclusion that several comments induce is to identify the female driver as a prostitute. These comments highlight several details from the news articles such as her luxury car (Genesis: the brand), her age (in her 30s), her state of being fully drunk and her male fellow passenger. These comments distort this car accident into an issue of brothels by saying, “she should be sold to a brothel and pay off her sin by selling her body.” Based on these assumptions of prostitutes and brothels, a comment even suggests a solution for the consequences of her crime: it says, “she [the female driver] should be sentenced to be penetrated by as many men as possible for her redemption.” This is one of the typical examples of misogyny that dichotomizes women either into saint or prostitute: according to Ueno (2012), misogyny consistently divides women into two groups such as mother versus hooker, or a marriage partner versus a sex partner. The online comments exercise their misogyny by insulting and labelling the female driver as a prostitute. Of course, we can find a small number of comments that are concerned about the overwhelmingly misogynistic atmosphere and the usage of hate speech against women. However, such comments are too small in terms of number and are not popular online, i.e. they do not have any “I like” (thumb up) ratings from other commenters. Rather, these concerns are counter-attacked by other comments that advocate reverse discrimination in terms of gender: for instance, “If you are a woman, you will be sentenced much lighter than a man,” and “The only achievement that Korean women can make in terms of gender equality will be the crime rate.” The examination of the news articles on wrong-way driving and their online responses illuminate both how banal misogyny such as gender markers are habitually and differently utilized in journalism, and how banal misogyny in news reports is connected to varying degrees of online hate speech. In reporting wrong-way driving, Korean journalism tends to highlight the female gender only, which contributes both to the entrenchment of discriminatory gender values and the promulgation of insults against women. In the news reports on traffic accidents and Kim-yeosa, the explicit language of hatred cannot be easily found, but the subtle, mundane and unmemorable words and expressions that generalize and paint women as inferior are repetitively and naively used. Meanwhile, online responses to such news reports are filled with various online hate speech, including several misogynistic neologisms, stigmatized words against women, modified and direct curses, distorting of feminism and the sexual objectification of women. In so doing, online hate speech effectively constitutes the tactics and ideas of misogyny.

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Conclusions Under the patriarchal hegemony, misogynistic representations are prevalent in the Korean mainstream news media and reproduce gender-bias and gender discrimination in society. Since the operative concept of misogyny was already a fundamental component of shared reality in Korea, a formal delineation of the term itself quickly became a salient social issue. This study aimed to explore the foundational misogynistic conventions and presuppositions of mainstream news articles and offer a different approach from a media frame analysis that concentrated on more technical and localized issues surrounding the production of media discourse. We examine how misogynistic attitudes are constructed through conventional, consistent and habitual representations of women in the mainstream news media. In the same vein, firstly, we examine how misogynistic attitudes are constructed through the routine, mundane and habitual representation of women in the mainstream news media. The association, emerging over the past decade, of Kim-yeosa with the idea of a bad female driver indicates the production of a negative stereotypical image of women in the mainstream news media. This image is reinforced through the deployment of short phrases, humourous depictions of female subjects and a patronizing approach to the subject matter of the articles. We have suggested the term banal misogyny to expose the problematic and habitual deployment of small words, constant reminders and daily representations of misogyny in the praxis of journalism. The concept of banal misogyny underscores the urgency of developing an alternative approach to the habitual media reportage rather than relying on media framing and media analysis. The media frame theory, which has dominated the approach of examining news articles and discourses on women in South Korean academia, does not efficiently highlight the problems of the structural gender bias in South Korean society and the impacts of the mainstream news media. Similar to Billig’s thesis of banal nationalism, misogyny is “crucially sustained not so much through explicit ideological exhortation, but through implicit, repetitive, symbolic reinforcement” (Hearn, 2007, p. 660). We suggest that the lens of banal misogyny enables us to see both the gender-discriminated patterns in journalism and the distorted influence on the society. Secondly, we explicate the close connection between the habitual representation of women in traffic accidents and online hate speech. In reporting traffic accidents, particularly wrong-way driving, the mainstream news media tend to single out female gender, which often promulgates inflammatory, insulting and sexist comments online. Specifically, the female gender marker is crucial in how the patterns of hate speech are codified online. In a similar manner to the term Kim-yeosa, many terms embedding discrimination and hatred against women are still coined and spread through habitual and repetitive usage. As Billig argues in his study on the connection between banal national identity and the press, unremarkable clichés are “important because of, not despite, their rhetorical dullness” (1995, p. 93). The vocabularies used in news media

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both reflect and influence values and perception of speakers. Therefore, we argue that banal misogyny, which can be located in many habitual, repetitive and conventional customs in the news reportage, functions as the foundation and proximate cause of various hate speech online. In order to regulate hate speech, urgent attention must be paid to how banal misogyny is concocted and spread in mainstream media and in everyday conversation. While misogyny has become one of the most disputed words in the public and academia, our study of banal misogyny contributes to provide expanded understanding of the daily mechanism of misogyny as well as other types of hate politics and even racism in South Korea. Many forms of words and public discourse echo other types of discrimination, hatred and racism both in the vernacular and in institutionalized ways. Many minority groups including women, migrants, Muslims and LGBTs (lesbian, gay, bi-sexual and trans-sexual) face discrimination both with verbal and physical violence and with everyday little things such as implicit violent communication and disrespect, as well as isolation (Kim, 2016). According to Noble (2005), such banal ways of racism cause discomfort and ontological insecurity to those affected by social incivility and everyday behaviours of less dramatic, more pervasive forms of racism. Our study on banal misogyny is particularly useful with understanding as well as monitoring various types of hate politics and racism in banal forms. Once we recognize the ways in which banal misogyny is represented and plays out, we can mobilize our concerns and practices to prevent many types of hate politics and racism in banal forms.

Notes 1 This work was supported by the Seed Program for Korean Studies through the Ministry of Education of the Republic of Korea and the Korean Studies Promotion Service of the Academy of Korean Studies (AKS-2017-INC-2230002). 2 Kwon, M. (2016) also argues that misogyny as a historical outcome from the colonial period needs to be examined in tandem with similar hate politics such as regional discrimination, homophobia and anti-communism in the context of (South) Korea. 3 Nussbaum introduces ten methods of objectification: instrumentality, denial of autonomy, inertness, fungibility, violability, ownership, denial of subjectivity, reduction to body, reduction to appearance and silencing (2012, pp. 119–120). 4 People find such a definition of 김여사 from the NAVER Dictionary in open section: see the details at http://endic.naver.com/search.nhn?sLn=kr&searchOption=all& query=%EA%B9%80%EC%97%AC%EC%82%AC. 5 NAVER provides 652 news media in total, including 13 daily newspapers, 47 broadcasting/communications, 68 economic/IT, 94 Internet newspapers, 115 sports/ entertainment, 76 regional newspapers, 73 magazines and 166 professional/others. 6 This phrase is from an article in Korea Expose. See the details from www.koreaex pose.com/hyundai-motor-advertisements-patronize-mrs-kim/ 7 The title of the article is “Sexual Assault of a Child Sensation. Wamad. ‘Mirroring’ disappeared and only ‘hatred’ remains” by Hangyoreh, published on November 22 in 2017. 8 We used the keyword “wrong-way driving accident” and collected news articles from five nationwide newspapers such as Chosun Ilbo, Dong-A Ilbo, Joonganng Ilbo, Hangyoreh and Kyunghyang Shinmoon.

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9 The data is from the Traffic Accident Analysis System of South Korea. Data available at http://taas.koroad.or.kr/ 10 “Fully Drunk Woman in her 30s, Wrong Way Driving in Kyeong-bu Highway . . . multiple vehicle collision”, Published on August 27th, 2017, Kyunghyang Shinmoon. 11 According to an annual report of digital news consumption by the Korea Press Foundation (2017), Koreans prefer to read news on news platforms rather than on individual media websites. NAVER is the most popular portal site/search engine in Korea with the biggest number of visit logs (pp. 20 & 40). 12 Access date: Nov, 27, 2017, one comment was deleted because it was a spam. http:// news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1= 102&oid=032&aid= 0002813737 13 The original comments are written in Korean and were translated into English by the authors of this chapter. 14 Compared to Kim-yeosa, Kimchi-nyeo is regarded as a more blatant and direct misogynistic term, and by using kimchi, i.e. Korean traditional food, Kimchi-nyeo also tends to define perceived negative characteristics in Korean women as a racial trait (Kim, J., 2018). 15 For example, there is a common curse word sibalnyeon/ssibalnyeon [“fxxxing bxxxh”], they modified it into 氏發年, or “C FOOT YEAR.” The former borrowed Chinese characters to make the reading sounds of a Korean curse word, and the latter borrowed English characters and words to recreate the curse word.

References Billig, M. (1995). Banal Nationalism. London, Thousand Oaks, and New Delhi: Sage Publications. Emcke, C. (2016). GEGEN DEN HASS. Frankfurt am Main: Verlag; Jung, J.-I. (trans.) (2017) Hatred Society. Paju: Dasan Books. Faludi, S. (1991). Backlash: The Undeclared War Against American Women. New York: Crown Publishers, Inc. Han, J., & Ling, L. H. M. (1998). Authoritarianism in the hypermasculinized state: Hybridity, patriarchy, and capitalism in Korea. International Studies Quarterly, 42(1), 53–78. Hearn, J. (2007). National identity: Banal, personal and embedded. Nations and Nationalism, 13(4), 657–674. Hong, J. (2009). The constitution of meaning of sexual violence: Frame analysis of JoongAng Daily Newspaper and Hankyoreh. Korean Journal of Broadcasting and Telecommunication Studies, 23(5), 458–498 (in Korean). Hong, J. (2017). The study of the media’s method of reenacting gender based violence. Korean Journal of Communication & Information, 83, 186–218 (in Korean). Hur, M. S. (2007). Reporting frame in articles on female professionals. Media, Gender & Culture, 7, 5–45 (in Korean). Hyun, K.-M., & Kim, W.-Y. (2005). A study on the news frame of female politicians in newspapers: Frame analysis of coverage on female candidates in 17th General Election. Media, Gender & Culture, 3, 38–72 (in Korean). Kim, H. (2004). Gender frames of Korean newspapers women in crime news. Korean Journal of Communication & Information, 2, 63–91 (in Korean). Kim, J. (2018). Misogyny for male solidarity: Online hate discourse against women in South Korea. In Jacqueline Ryan Vickery & Tracy Everbach (eds.) Mediating Misogyny: Gender, Technology, and Harassment (pp. 151–169). Cham, Switzerland: Palgrave Macmillan.

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Kim, S. N. (2015). Misogynistic cyber hate speech in Korea. Issues in Feminism, 15(2), 279–317 (in Korean). Kim, S.-N., & Jang, H.-S. (2011). A study on the characteristic features shown by Korean newspapers in reporting sexual violence. Research on Political Communication, 22, 5–36 (in Korean). Kim, Y. (2016). Diasporic daughters and digital media: “Willing to go anywhere for a while”. Cultural Studies, 30(3), 532–547. Kwon, M. (2016). The advent of new Cold War and the comparative research of hate speech. Critical Studies on Modern Korean History, 35, 11–45 (in Korean). Lee, J. (2010). Demonstrative expressions of insulting against women in Korean cyber space. The Sociolinguistic Journal in Korea, 18(2), 215–247 (in Korean). Lee, N. (2016). Misogyny, gender discrimination, and feminism: A feminist project of social justice surrounding the “Gangnam Station 10th exit”. Culture & Society, 12, 147–186 (in Korean). Moon, S. (2000). Overcome by globalization: The rise of a women’s policy in South Korea. In Samuel S. Kim (eds.) Korea’s Globalization (pp. 126–146). Cambridge: Cambridge University Press. Noble, G. (2005). The discomfort of strangers: Racism, incivility and ontological security in a relaxed and comfortable nation. Journal of Intercultural Studies, 26(1), 107–120. Nussbaum, M. C. (2010). Objectification and internet misogyny. In L. Saul & M. C. Nussbaum (eds.) The Offensive Internet (pp. 68–86). Kim, S. (2012) (trans.). Seoul: Acorn. Son, H. (2018). Hate discourses for 7 years. Culture Science, 93, 20–49 (in Korean). Ueno, C. (2010). Onna Girai – Nippon no Misogyny. Nah, I. (2012) (trans.). Seoul: Eunhangnamu.

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5

Caricature as a form of hate speech? The example of the diffusion of French “atomic humour” in Japan Tino Bruno

Introduction With its invisible aspect (i.e. radioactivity) and its ability to deliver phenomenal power (i.e. fission or fusion), radioactivity is unseen but powerful, making it the perfect subject of utopian and dystopian fantasies. Furthermore, since the end of the Second World War, its opponents have used different ploys to try to undermine its credibility. Among the schemes they have used, humour has often been privileged. It is therefore not surprising that the world literature refers to it.1 In Japan, where two atomic bombings were experienced in 1945, as well as a serious episode of radioactive pollution in 1954, atomic energy remains a relatively sensitive topic. Thus, the BBC TV show QI, broadcast on 17 December 2010, made Japan grind its teeth when the death of Yamaguchi Tsutomu 山口 彊 (1916–2010) was mocked. Nicknamed “The unluckiest man in the world,” he survived two atomic bombings. The Fukushima nuclear disaster of March 2011 dragged some Japanese back towards their nuclear past, while for many others, the present situation was making the issue once again relatively sensitive. Yet, since the disaster occurred, many foreign jokes referring to it arose. It is hardly surprising that some of them caused outrage in Japan. The problem lies precisely here: if it offends the sensibilities of others, can humour be addressed as hate speech? In other words, where does humour end and where does hate speech begin? And how can a media output be seen as amusing in a given socio-cultural environment and hate speech in another? In this study, we will try first to understand how French caricature can be considered as a form of hate speech in Japan. We will therefore examine the presence of and the space for “atomic humour” within the archipelago. Then, we will analyze the most representative French cartoons published about the Fukushima nuclear disaster, emphasizing recurring patterns and differences with Japanese cartoons. Finally, we will look into a photomontage broadcast on French public television, chosen for its media resonance, by observing how, through an analysis of Japanese press, as well as the historical, political and cultural context of the archipelago, it could offend the sensibilities of some Japanese.

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This case study will lead us to reflect more generally on the porous border that exists between humour and hate speech but also on the role of the media as vectors of a message seen as “funny” by some and “hateful” by others. Part of the Japanese press made the choice of publishing some French caricatures that were already considered inappropriate, favouring the “right to information” rather than self-censorship. Potential hate speech of the caricatures in a globalized world? The dramatic episode of the Charlie Hebdo massacre reminded us that cartoonists have to confront different sensitivities, even the most extreme. At the same time, the spurt in the dissemination of information around the world offered the different national or regional media new audiences. Such a new public comprising different “sensibilities” now has access to content that was not previously intended for them. A “simple” cartoon can easily appear offensive for a public that is not familiar with its codes. Our work is framed within a multidisciplinary study field, particularly fertile in recent years. After the Danish Muhammad cartoons controversy (Jyllands Posten, 2005), many studies have been conducted to find out if they fall within the scope of free speech or hate speech, whether it is from a legal point of view (Mbongo, 2007; Pillay, 2010; Bleich, 2012), historical (Ory et al., 2015) or moral (Houdebine-Gravaud & Pozas, 2006). In addition, a growing number of studies are interested in the reception of cartoons in a globalized context, and its nature (image), making it more accessible – at least at first glance – to a public with different cultural codes or a different language. For example, the sociologist Kuipers (2011) highlights the existence of unwritten rules (humour schemes) embedded in any humourous message, conditioning its recognition as such and inevitably varying according to cultural identities2. The historian Jane Weston Vauclair discussed French satire’s humourous scope in the world,3 Marloes van Noorloos the difficulty of defining the boundaries between hate speech and humour in a globalized world.4 Indeed, time is running out: with Felix’s caricature in Charlie Hebdo comparing the Italian victims of the Amatrice earthquake (2016) to pasta5 and the hazardous observation of the President of the French Republic, Emmanuel Macron on the Comoros kwassa-kwassa,6 French humour is increasingly criticized.7 However, no clear definition of hate speech has been able to emerge on the international scene, as outlined by the Council of Europe, which stipulates its main forms: Hate speech has no particular definition in international human rights; it is a term used to describe broad discourse that is extremely negative and constitutes a threat to social peace. According to the Committee of Ministers, hate speech covers all forms of expressions that spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance.”8

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In fact, as noted by the lawyer Gwénaële Calvès, the definition of hate speech has over time gradually moved from hateful expressions targeting one ethnic group or religion in particular, to include a broader scope,9 that the Council of Europe defined as “a broad spectrum of very demeaning speech, ranging from hatred to inciting insults and defamation, perhaps through exacerbated prejudices and prevention,”10 Since 2004, the Human Rights Committee of the United Nations, meanwhile, recognizes negative generalizations as a form of hate speech, whether it falls somewhere between insult, defamation and discrimination. Also, as noted by Clavès, the prohibition of Hate Speech relies now more on a subjective point of view, that is, it focuses more on those affected by the message than the danger it represents.11 In his study, “Of words that hurt in a globalized world,” the jurist Marloes van Noorloos explains how defining hate speech has become even more complicated as messages can now travel across countries and be displayed to many receivers who do not necessarily share the same interpretive framework as the people and the medium involved, especially given that the meaning of a message often depends on a historical or cultural background.12 A fortiori, says van Noorloss, when it comes to humour, because it is a form of expression where freedom is greater than in the usual frameworks, there can be what she calls “free zones” where purpose is defined by cultural logic. However, in an open and globalized world, jokes can circumnavigate the planet in a few seconds and the notion of a limited audience or “free zone” seems hard to defend. Likewise, it seems complicated to take all the sensitivities into account without constant self-censoring. In order to look into how French often-caustic “atomic humour” could hit a sensitive spot for the Japanese, and assess how it could potentially be considered a form of “hateful” discourse, it is first essential to understand the historical or cultural space this type of humour occupies in the archipelago. What space for “atomic humour” in Japan? A type of humour considered “usual” in a given place and “unusual” in another is likely losing humourous potential when circulating beyond a defined cultural area, so that it might even become hate speech if it is particularity caustic. There is not, strictly speaking, such a thing as “atomic humour,” but a “tradition” of drawings mocking the dangers of nuclear energy can be found in some countries.13 So can this type of jokes be found in the country of manga, also famous for having been the target of atomic bombing in 1945? In fact, we can find marks of an “atomic humour” from the post-war period in the Japanese media. The cartoonists Yokoyama Taizô 横山 泰三 (1917–2007) and Kondô Hidezô 近藤 日出造 (1908–1979) respectively published for the famous daily newspapers Asahi Shimbun 朝日新聞 and Yomiuri Shimbun 読売 新聞 several humourous drawings depicting the risks associated with radioactive fallout from nuclear tests at a time when the country began using civil nuclear power. However, it is important to acknowledge that they were mocking only military nuclear activities, i.e. the panic caused by the incident of the Daigo Fukuryu

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Maru 第五福竜丸 (1954),14 while civil nuclear activities were rather shown as a solution to all the problems the country was facing at the time. There is a need for a systematic analysis of the drawings published from that time to present day, yet according to one of the greatest Japanese cartoonists, Ibaragi Masaharu, such drawings tended to be more rare in mainstream media in the late 1960s due to competition from other media and a progressive disinterest of readers, precisely at the time when the first nuclear power plants were being built in the archipelago. Furthermore, as Marguerite Wells (2006) notes, if satire exists in Japan, it is often disconnected from reality, and appears in theatres rather than in the media; or, as Ronald Stewart (2015) suggests, on the Internet or in alternative media sources. Nevertheless, it is interesting to note that “atomic humour” has not completely disappeared in the aftermath of the Fukushima nuclear accident. Shiriagari Kotobuki りあがり寿, author of the manga series in four frames (4コマ漫画) entitled Defenders of the Planet 地球防衛家のヒトビト, published in the daily Asahi Shimbun since 2002, referred to it many times. On March 23, 2011, the journal published a manga in which the main character was concerned about the constantly fluctuating severity of security measures established to respond to the radioactive threat.15 On April 10, 2011, he is depicted saying that he did not know what specialist to turn to judge the danger of the situation. In the same way, Asakura Yûzô published drawings on the Fukushima nuclear disaster and its management by politicians for the regional daily Fukushima Minpô.16 These however, tended to be less impressive, from a visual point of view, than the drawings published in the 50s, in that they represented only rarely the physical effects of nuclear energy, such as atomic rain or the gigantism of the contaminated animals. In fact, they described the helplessness and even the resilience of a people who, struck by disaster, were uncomfortable with politically questionable management, rather than the health consequences themselves. Thus, if an “atomic humour” does exist in contemporary Japan, it is poorly represented in newspapers and remains almost invisible on the nonverbal level. Beyond the explanations already given by Wells (2006), Ibaragi (2007) or Stewart (2015), it should be emphasized that daily newspapers, almost exclusively sold through subscription with an often impressive circulation, tend to be cautious so as not to offend both their readers, with whom they have signed a contract of confidence, and clubs of journalists with which they share special relations.17 By way of comparison, let’s now look at a few examples of cartoons published in mainstream media outside of France since the Fukushima nuclear disaster. Main cartoons published by the international press after the Fukushima nuclear disaster A quick observation of caricatures found in the international press after the Fukushima nuclear accident reveals two particularly reoccurring themes: one concerned with the opacity or the lies on the part of the nuclear operators, another with the health hazards related to the exploitation of nuclear energy. On the

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aesthetic level, they were often appealing to Western cultural codes, oscillating between references to Disney movies – the nose of Pinocchio or the Witch of Snow White – and to a fantasized Japan reduced to sushi, sumo and kimono among other stereotypical motifs. Colourful and sophisticated, they stand out from the Japanese drawings, depicting clouds of smoke, men in anti-radiation suits or allegedly contaminated foods. Regarding the first theme, depicting TEPCO operators or important politicians like prime ministers Naoto Kan菅 直人 and Abe Shinzô 安倍晋三 has generally gone unnoticed in Japan, a country where political satire also exists and where the idea that the media must serve as watchdogs, intermediaries between the political power and the people, is ingrained in people’s minds. The second thematic pattern was more likely to focus attention because it made fun of a population facing radioactive pollution and contrasted with the usual drawings of political or scientific nature. While it also existed in Japan, it was of a much more abstract form, making it more acceptable. Moreover, by immediately implying that the radioactive hazard would last at least until the 2020 Tokyo Olympic Summer Games, they indirectly threatened the Japanese government and many social and economic actors. Notably because since the aftermath of the nuclear disaster, the country has been fighting against “reputational damages” (fuhyô higai) arising from erroneous information or rumours, from which the Olympic Games suffered.18 The caricatures could thus hurt the sensibility of the Japanese by stigmatizing a population, as well as be embarrassing or even defamatory for a country that sought to revive economic activity notably through tourism. However, taking the context of production and the intentions of the authors into account, it seems difficult to believe that the drawings aimed at harming Japan’s reputation or hurting the victims of the nuclear disaster. The authors had probably not measured the extent of all the rumours about the effects of radiation, the enormous efforts made by political, economic and media actors to address them, nor the frequent discrimination which some children from the affected areas still suffered from.19 The French atomic cartoons that followed the nuclear accident of Fukushima: repeated scandals? The majority of the cartoons that caused a scandal since the Fukushima nuclear disaster in Japan are French. The first ones are those of the satirical television show, Les Guignols de l’Info (Canal +) which, from March 14 to 17, 2011, staged the famous Nintendo duo, Mario and Luigi, called to repair the damaged nuclear plant. They were described as ready to face the danger of the mission since the characters have had to face different types of monsters and even a volcano during their long careers in video game. Following criticism from Japanese residents in France, the Japanese Embassy in Paris protested against the channel, accusing it of having offended the victims of the nuclear disaster. The show asserted its right to freedom of expression and responded that the authors never intended to upset the victims or the Japanese people.20

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On a symbolic level, using the famous Mario and Luigi duo in France, a country where the game is very popular, and at a time where Japan and its Cool Japan strategy was trying to export its “subculture” across the world, was logical.21 Nevertheless, it is quite ironic that it is the costume of the famous Nintendo plumber that Prime Minister Abe Shinzô decided to put on for an Olympic Games promotional video. This demonstrates, in any case, that the Japanese government was aware of the symbolic significance of its character abroad, making the French joke all the more intolerable. However, it is interesting to note that certain cartoons, whose content was just as likely to shock the people of Japan, went unnoticed in the archipelago. It is, for example, the case of a fake advertisement that was broadcast in the same show. It parodied the motto of the French national nutrition programme on health – “eat at least five fruits or vegetables a day” – by concluding: “in the interests of your health, throw five fruits and vegetables away a day.” It was of course implied that vegetables and fruits had been contaminated by the radioactive fallout. Although the humour relied on a French cultural practices (the prevention message), the caricature or satire seemed obvious as Japan was presented in a very stereotypical way, with kimono, Japanese-like music, sliding doors (fusuma) or fake ideograms. Similarly, when the comedian Olivier de Benoist was impersonating a (French) inhabitant of Fukushima, revealing a “multi-sleeves sweater” called “Fuku six arms” on the popular show On n’demande qu’à en rire, on May 19, 2011, on the public channel France 2, the joke went unnoticed. These two examples illustrate how the content, the range or the accessibility of a message are decisive factors that may or may not stir up a scandal. After the broadcast of sketches with Mario and Luigi, the Embassy of Japan in France had promised to monitor French television in order to ensure that there would be no further offending contents. Faced with numerous jokes on the subject or the absence of complaints from Japanese residents in France, many skits remained unnoticed. However, and perhaps more systematically since the announcement of the Japanese candidature for the Tokyo Olympic Games, French cartoons mentioning the Games or athletes whose bodies have mutated following the Fukushima nuclear disaster tended to receive significant attention in the country. Thus, when the satiric newspaper Le Canard enchaîné published on September 11, 2013, a caricature representing two sickly sumo wrestlers with surplus limbs fighting in front of two spectators wearing radiation combinations,22 it created a diplomatic scandal. The media resonance was even more important when in October 2012, while Japan was still trying to win the bid for the Games, a photomontage caricaturing a famous Japanese football player was broadcast on French television. It is through the analysis of the photomontage, and in particular of the way in which it was presented by the Japanese press, that we will now try to understand how “atomic humour” could be perceived as a form of hate speech in the archipelago.

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Case study: the Kawashima affair On October 13, 2012, during the Flop Ten,23 which traditionally opened the talk show presented by Laurent Ruquier and broadcast on the French public channel France 2 every Saturday evening prime-time, Didier Deschamps, the coach of the French football team took the first place after the historic defeat against the national team of Japan. On this occasion, Ruquier ridiculed the performance of the Japanese goalkeeper Eiji Kawashima by imagining him with four arms: a reference to the strong radioactive fallout from the Fukushima disaster.24 To accompany the presenter’s comments, a photomontage was revealed where the goalkeeper, equipped with four arms, was about to catch the ball. This photomontage referred to the fact that due to the nuclear accident of Fukushima, the player who was then playing at the club of Liège (Belgium) had mutated and was now equipped with four arms, a definite advantage to stop the ball. This joke was criticized by some Belgian newspapers, including the national daily Le soir, which considered it as a media slip-up,25 while in France the words of Ruquier were especially reported on the Internet. From October 16, 2012, the case took a diplomatic turn when the Embassy of Japan in France sent a letter of discontent to France 2 and when at least four Japanese personalities, all disappointed, even outraged by the joke, intervened publicly.26 In response to these complaints, French officials, including Laurent Fabius, Minister of Foreign Affairs at the time, apologized on the same day for the unfortunate joke, while the public channel hastened to produce a statement to apologize and recalled their attachment to Japanese public television NHK. Surprised by its scale, Ruquier came back on October 17 to talk about the case in the show “On va s’gêner” broadcast on Europe 1 and, in a playful mood, spoke of it as of a “tsunami in a glass of water.” In the newspaper Le Parisien that interviewed him, he claimed to have “the utmost respect” for victims of Fukushima and said finding the controversy “senseless.”27 The next day, finally, Kawashima condemned the joke, in the Belgian press, speaking out for the sake of the victims of the atomic tragedy.28 In order appreciate the coverage of the Kawashima case, we analyzed nine newspapers29 over a period of eight days, starting the day after the broadcast of the programme (October 14) (see Table 5.1). Without exception, all the newspapers from the corpus have published at least two articles about the Kawashima case, including at least one on October 17, 2012, when the matter began to take on a diplomatic dimension. Regional newspapers have covered the case more than major national newspapers, with four to five articles each. Turning now to the reception of the Kawashima case reported by the Japanese press, in order to illustrate the media coverage in a concise manner, we chose to create a summary table giving some indications on the elements presented in the articles: the reproduction of the offending photomontage, explanations about the joke, mentions of foreign criticism, of Japanese criticism, of apologies from France, of the radio broadcast in which Ruquier commented on the critics, or newspapers’ comments on the joke (Table 5.2).

17 18 19 20 21

October October October October October

14 October 15 October 16 October

2 articles

Yomiuri Shimbun

3 articles

Asahi Shimbun

Table 5.1 Quantitative analysis

1 article

1 article

1 article

Mainichi Shimbun

1 article 1 article 1 article

Sankei Shimbun

3 articles

2 articles

1 article

1 article

Tôkyô Shimbun

1 article

Nikkei Shimbun

1 article 2 articles 1 article

Chûgoku Shimbun

2 articles 2 articles 1 article

Fukushima Minpô

1 article 3 articles 1 article

Fukushima Minyû

Photomontage

Yes Yes No No Yes No Yes Yes Yes

Newspaper

Yomiuri Shimbun Asahi Shimbun Mainichi Shimbun Sankei Shimbun Nikkei Shimbun Tôkyô Shimbun Chûgoku Shimbun Fukushima Minpô Fukushima Minyû

Table 5.2 Qualitative analysis

No Yes, Yes, Yes, Yes, Yes, Yes, No Yes, short

short short short short short short

Joke’s explanations No Yes Yes Yes Yes Yes Yes Yes Yes

Foreign criticisms

Criticism JP / Yes/Yes Yes/Yes Yes/No Yes/Yes Yes/Yes Yes/Yes Yes/Yes Yes/Yes Yes/Yes

Apologies FR

No No No No No No No Yes Yes

Radio

No, but readers’ opinion No No No Yes No, but external opinion No No No

Comments about the joke

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First, among the nine newspapers analyzed, six chose to publish the Kawashima photomontage. If the majority of them gave some explanation about the context of the joke, they often merely recalled the victory of Japan or the concept of the show. With the exception of the Yomiuri Shimbun, all the newspapers in the corpus mentioned or quoted empathetic foreign critics, notably Belgian or French, giving more weight to the indignation. Furthermore, apart from the Mainichi Shimbun, which did not report the French apologies, all the newspapers have accounted for the public remarks made by officials from France and Japan. On the other hand, only the two local newspapers published in the Fukushima prefecture published the statements made by Ruquier on the radio. In general, the media coverage of the Kawashima case remained very factual, inquiring little or not at all on the origin of the joke or its reception. Thus, the main difference between the daily newspapers was whether they chose or not to reproduce the photomontage. Nevertheless, the financial newspaper Nikkei Shimbun devoted a column to the case, using the title “Art: it’s either elegant or disagreeable,” giving some early explanation on the cause of the scandal: A humorous new from France, not that pleasant, is hard for us to swallow. The scene takes place in a successful variety show on public television. While the presenter comments on the photomontage of the goalkeeper Eiji Kawashima, represented with 4 arms, he states: “I wonder if he doesn’t have a secret Fukushima effect” the public laughs and applauds. Is this a reaction to the unfortunate defeat of France against a less prestigious team? If this is really the case, it is disproportionate. The comments are also very criticized in France and abroad. It is comforting to know that the discomfort is everywhere, but another victim of the atomic bomb was already mocked by a BBC program two years earlier under the name of “the unluckiest man in the world”. Unfortunately, the heart of Japan and the Japanese still remain misunderstood30 Furthermore, the Tôkyô Shimbun newspaper reported on the comments from Takashi Hayasaka, author of a book of jokes, who delivered to the newspaper its analysis, after having explained that French humour was seen as particularly harsh, while the French were known to have a sense of superiority: The joke about the player Kawashima is low-level. It is nothing for a French person. . . . concerning jokes about FUKUSHIMA or the war, their inappropriate nature has always been debated. These can contain invectives or jabs but we cannot laugh at bad jokes.31 Finally, if the Yomiuri Shimbun did not respond directly to the case, it published two opinions from readers criticizing the joke. The first came from a resident of Fukushima of mature age, who explained he failed to regain composure after the comment from Ruquier, eventually concluding: “so that this kind of

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thing does not happen again, I would also like foreigners to better understand what is happening in the affected areas.”32 The second came from a student of the Osaka region, remote from Fukushima. According to him, the “joke” could not be regarded as such, and there was a need to “give serious thought to how our words and our actions can hurt others.”33 A greater willingness to understand what’s on TV While not proceeding to a systematic analysis of television coverage of the Kawashima case, it is here helpful to look into a few shows in which the case was debated. For example, on the channel TBS, Hiroshi Sekiguchi and Tetsuo Nakanishi, two journalists, shared their disappointment of “the French,” while on the Terebi Asahi channel, the filmmaker Yamamoto Shinya invites Ruquier to come and apologize to Fukushima. In fact, broadly speaking, the general tone resembled that of the Nikkei’s column, and there were few emissions that tried to analyze the cultural aspect underlying the joke. A debate broadcast on the Fuji Terebi channel on October 17, 2012 between presenters Tomoaki Ogura and Shinsuke Kasai similarly recalled that there was a time when foreign satires were broadcast in Japan, but a tighter schedule between the production of humourous content and its broadcast abroad had made them rawer, causing more objections than usual. Finally, some channels like TBS or NHK asked the French what they thought of Ruquier’s joke or tried to question officials in France. Opinions were divided. The Kawashima photomontage: Potential hate speech? It is thus necessary to examine the elements that could possibly equate Ruquier’s photomontage to a form of hate speech. The definition of hate speech differs, as observed, according to countries, so that we have made the subjective choice to answer this question by basing our analysis on the media coverage which was made in Japan, since the country was directly or indirectly targeted by the Ruquier’s humour. To do so, the focus was set on the criticisms and the explanations concerning the context of production or dissemination of the joke, analyzing the reasons, explicit or likely, that could have made it “hateful” in a globalized context. First of all, the joke has seemingly not been appreciated by the Japanese authorities nor by the press. The daily Nikkei Shimbun writes that it is “unpleasant,” while another newspaper termed it a “bad joke.” Not surprisingly, the very object of the joke, the genetic mutation of goalkeeper Kawashima Eiji and, through him, the problem of radioactive pollution, have been critically relayed in the various newspapers of the corpus. The fact that the cartoon was broadcast after Japan’s victory over France strengthens the outrage, in that it dwindles the legitimacy of the Japanese victory, reducing it to the performance of a superhuman guardian, just as it gives the idea, as the daily Nikkei Shimbun implied, that it would be a form of revenge from France in the face of an unexpected defeat. Moreover, even if the Japanese media did not dwell on the latter, it can be assumed that the plastic form of the cartoon and its diffusion channel played a role in the scandal. By mixing real photography and fantasy elements, while having a static dimension like a press drawing, a photomontage broadcast on television has a visual power, often superior to a simple newspaper cartoon, in that it offers less of a shift with reality.

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In addition, the difficulty lies in the very definition of what a joke really is and, as explained in the Yomiuri Shimbun, in the fact that the photomontage of Ruquier was sometimes not considered a joke. Indeed, if in France, one will rather tend to wonder if it is a “good joke” or a “bad joke,” it seems that this is not necessarily the case in a Japanese context. So, when the Nikkei Shimbun is saddened that the Japanese are not understood, and that a reader from Fukushima or a filmmaker are calling for foreigners to learn to understand more about what is happening in the disaster areas, we have the impression that they deal with information and not a joke, while the latter is necessarily out of step with reality. Finally, the spatiotemporal context of the diffusion of Ruquier’s joke seems to have had its importance in the Kawashima affair. Thus, many media, starting with the daily Nikkei Shimbun, have specified that the photomontage had been broadcast on “public television.” However, even more than in France (with France 2) or in the United Kingdom (with the BBC), the Japanese public television (NHK) is known to be particularly conservative. In this context, the joke of Ruquier detonates, and resonates like a message sent by France to Japan, while the mention of the applause of the spectators takes part of the indignation of the people feeling targeted by the joke. In the same way, the diffusion timing necessarily played a great role, the photomontage having been broadcast only three months after the announcement that Tokyo would host the 2020 Olympic Summer Games. As seen earlier, Japan, already confronted with many rumours and misinformation – or information it considered erroneous – was working hard to improve an image tarnished by the nuclear disaster and to address “reputational risks.” The fact that the joke was broadcast on a “successful variety show,” as noted in the daily Nikkei Shimbun, only increased such risks and seemed all the more unforgivable.

Conclusion Through the analysis of the coverage of the French cartoons in Japan, and in particular that of the Kawashima case, we tried to understand how a type of humour, in this case satirical editing mocking the danger of nuclear power, was received in a country initially little receptive to it, questioning the limits of humour globalization and examining its potential form of hate speech. Most newspapers settled for factual articles, without attempting to analyze Ruquier’s photomontage. The regional newspapers selected for the study covered the matter in a broader way but were not particularly moved despite their geographical proximity to the Fukushima region or their particular sensitivity towards nuclear energy. Moreover, the fact that France 2 is public, as it was invariably mentioned in the articles, seemed to have strengthened the indignation: Ruquier’s show was also broadcast in Japan on the channel TV5 Monde and the laughter and applause from the audience sounded like a message from France to Japan. More than any possible sensitivity towards nuclear energy, it is therefore the context of French broadcasting that reinforced the potentially hateful nature of the joke.

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The fact that Kawashima was targeted by the joke played a crucial role: playing both in the national team of Japan but also in the club of Liège, he was in a way an ambassador of Japan in the French-speaking world. Behind Kawashima stood all Japanese, whether they lived near the damaged plant, or far from it, or even abroad like the goalkeeper. They were all associated with FUKUSHIMA. The player himself explained that he had to react, not for himself but for the people of Japan. The message sent by Ruquier was taken as an offence against the Japanese and was embarrassing for Japanese authorities concerned with the image of their country. However, it is hard to believe that the cartoon aired on France 2, by a presenter known for his sense of humour, was intended to offend the Japanese population or the goalkeeper. Just as it is hard to think that it was motivated as implied by the daily Nikkei, by a resentful France “humiliated” after their loss to a Japanese team that was deemed less “prestigious.” An analysis of the coverage on the attack against Charlie Hebdo is enlightening: while the newspapers previously quoted defended freedom of expression without exception, many Japanese largely agreed on its limitations, both legal yet equally moral and therefore subjective, which becomes a fundamental aspect of a globalized world. It is furthermore interesting to recall that the newspapers and TV channels made the choice to publish the offending photomontage, thereby giving it a media response that it would never have had otherwise, while at the same time critiquing its potentially offensive nature. It would make sense to think that Ruquier’s joke, formulated in front of an audience generally rooting for him, was not likely to seem offensive in France. However, its diffusion to other audiences, outside the tacit contract between the presenter and the viewers of the French show, amplifies the risks of perceiving it as of form of “hate speech” or at least as a discourse practice that has similar effects – especially when considering that a discourse is not necessarily intrinsically hateful but that its context of production or dissemination may transform it. Who in Japan knows that the day before the diffusion of Ruquier’s photomontage, on the same channel, and at an hour of greater audience, another joke laughed at a five-arm Kawashima? Nevertheless, the uncontrolled diffusion of such jokes may be inevitable in a globalized world. The French humourist, Pierre Desprogres (1939–1988), known for his black humour, remarked that “we can laugh at everything, but not with anyone.” However, in an era of globalization, media are within the reach of “anyone.” Between the duty to inform and the duty of restraint, where lies the appropriate position of the media with regard to this type of humour? Does it really make sense to export a joke without a filter, almost in real time, without providing the keys to understand it? Should we self-censor information, in a world where information aimed at a certain audience can easily travel to other countries and meet audiences with very different sensitivities, sometimes so much so that it can stir up diplomatic crises, or in the most extreme cases, death?34 In other words, should French humour laugh at the misunderstanding, despite the risks

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that it implies, or should it, on the contrary, be formatted so that it can be understood by all, at the risk of losing its authenticity?

Notes 1 Whether it is scientific or not. See e.g. Gamson W. A. and Modigliani, A., “Media Discourse and Public Opinion on Nuclear Power”, in American Journal of Sociology, Vol. 95, 1989, pp. 1–37; Rifas, L., Cartooning and nuclear power: From industry advertising to activist uprising and beyond. PS: Political Science & Politics, 40(2), 255–260; Favez Jean-Claude and Mysyrowicz Ladislas, Le nucléaire en Suisse: Jalons pour une histoire difficile, Lausanne, L’Age d’Homme, 1987; Crilan (collectif), 140 dessins contre le nucléaire, Crilan, Les Pieux, 1980 or Charlie Hebdo hors-série, l’escroquerie nucléaire, 5 September 2012. 2 Kuipers, Giselinde, “The politics of humour in the public sphere: Cartoons, power and modernity in the first transnational humour scandal”, European Journal of Cultural Studies, 14(1), 2011, 63–80. 3 Vauclair Jane Weston, “Local Laughter, Global Polemics Understanding Charlie Hebdo”, European Comic Art, March 2015, pp. 6–14. 4 van Noorloos Marloes. “Des mots qui blessent dans un monde globalisé”, Esprit, vol. octobre, no. 10, 2015, pp. 45–55. 5 See for example www.leparisien.fr/culture-loisirs/italie-un-dessin-de-charlie-hebdosur-le-tremblement-de-terre-fait-polemique-02–09–2016–6089069.php, last accessed January 3, 2018. 6 See for example www.lemonde.fr/afrique/article/2017/06/05/apres-les-proposchoquants-de-macron-les-comoriens-exigent-des-excuses_5139073_3212.html, last accessed January 3, 2018. 7 Of course, the problem is also valid in a strictly national context; indeed, many scandals break out regularly in France. For the year 2017, media influencers Cyril Hanouna, Tex, Pierre-Emmanuel Barré or Cauet each have caused a scandal. We cannot forget Dieudonné either, whose sense of humour has been a subject of debate in recent years. See for example the study of Patrick Charaudeau: Charaudeau Patrick, “L’humour de Dieudonné: le trouble d’un engagement”, Charaudeau P. (dir.), Humour et engagement, Lambert Lucas, 2015, p. 135–182. 8 See www.coe.int/en/web/freedom-expression/hate-speech, last accessed December 26, 2017. The Council of Europe is an intergovernmental organization created in 1949 that ensures, among other things, the protection of human rights. 9 Calvès, Gwénaële. “Les discours de haine et les normes internationales”, Esprit, vol. octobre, no. 10, 2015, pp. 56–66. 10 Tarlach McGonagle – The Council of Europe against online hate speech: Conundrums and challenges, report presented at the conference “Freedom of Expression and democracy in the digital age”, Belgrade, 7–8 November 2013, quoted by Clavès Gwénaële. “Les discours de haine et les normes internationales”, Esprit, vol. octobre, no. 10, 2015, pp. 56–66. 11 Calvès, Gwénaële. “Les discours de haine et les normes internationales”, Esprit, vol. octobre, no. 10, 2015, pp. 56–66. 12 van Noorloos, Marloes. “Des mots qui blessent dans un monde globalise”, Esprit, vol. octobre, no. 10, 2015, pp. 45–55. The report is shared by the Council of Europe, which also underlines the importance of the historico-cultural context of production and reception of all speech, while questioning the role of the media in the dissemination of hate speech. In this regard, see in particular the proceedings of a conference organized on this subject in 2016 in the Balkans: https://rm.coe.int/media-regulatoryauthorities-and-hate-speech/16807338f5, last accessed on 16 July 2018. On page 13, we can read, in particular: “Since each form of speech occurs within certain historical and cultural context, its content and moral and emotional meanings are inseparable

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Caricature as a form of hate speech? 73 from such context. A speech which is not dangerous in one context, may be hate speech in another one.” See e.g. Gamson William A., Stuart David, “Media discourse as a symbolic contest: The bomb in political cartoons”, Sociological Forum, Volume 7, Issue 1, March 1992, pp. 55–86. The name of the tuna boat severely affected by the US thermonuclear test, Castle Bravo, on March 1, 1954. Followed by a large maritime radioactive pollution, the incident caused panic in the archipelago where, in particular, tons of fishery products were declared inedible and were consequently buried. About the mangas of Shiriagari Kotobuki, the reader can refer to the study of Mary Knighton, “The Sloppy Realities of 3.11 in Shiriagari Kotobuki’s Manga,” available online at the following address: http://apjjf.org/2014/11/26/Mary-Knighton/4140/ article.html, last accessed December 27, 2017. See in particular Stewart Ronald, “Breaking the mainstream mold: The birth of a local political cartoonist in post-3.11 Japan,” in The European Journal of Humour Research, Volume 2, No. 4, 2014, pp. 74–94. In this regard, see in particular Uchikawa Yoshimi and Arai Naoyuki (eds), Nihon no jânarizumu: Taishû no kokoro o tsukanda ka, Yûhikaku, 1983, p. 119. Because the candidacy, filed three months after the disaster of Fukushima, had attracted the suspicions of those who considered it a way to make people forget about the problems of contamination. It is therefore not surprising that it has been the focus of many caricatures around the world. In this regard, see in particular Mizuide Kôki, “2020 nen Tôkyô Orinpikku・Pararinpikku kaisai kettei to tasha ―Terebi hôdô o jirei ni –”, Spôtsu shakai kenkyû, N°24–1, 2016, pp. 79–92. In addition, it must be recalled that the victims of the atomic bombing, the hibakusha, were long discriminated against. See in particular this article by the historian Erre Fabrice: www.caricaturesetcaricature.com/article-satire-malentendu-et-liberte-d-expression-les-guignols-et-le-japon73843245.html, last accessed on July 20, 2018. In this regard, see in particular: Daliot-Bul Michal, “Japan Brand Strategy: The Taming of ‘Cool Japan’ and the Challenges of Cultural Planning in a Postmodern Age,” Social Science Japan Journal, Volume 12–2, 2009, pp. 247–266. See Le Canard enchaîné, 11 September 2013, p. 6. A humourous presentation of the 10 worst facts of the preceding week. Often criticized for being dull, it was abandoned in 2016. The player’s name ending in shima, which can also be found in the name of the nuclear power plant, facilitated the joke, with the player having already tolerated the burden of this similarity during a game in 2011. See the article published on the website of the daily (no longer available): “Laurent Ruquier a-t-il dérapé avec “l’effet Fukushima?”, October 14, 2012. Among them were the Foreign Minister Kô’ichirô Genba and Tanaka Makiko, then Minister of Education, Culture, Sports, Science and Technology. See the article “Blague sur le Japon: Ruquier se justifie”, Le Parisien, Paris, 16 October 2012, [Online] www.leparisien.fr/tv/gag-de-ruquier-france-2-presente-ses-regrets-aujapon-16-10-2012–2238515.php accessed last on June 25, 2016. See the article “Kawashima: ‘On ne peut pas plaisanter avec Fukushima’”, La Dernière Heure, 18 October 2012, [Online] www.dhnet.be/sports/football/division1/standard/ kawashima-on-ne-peut-pas-plaisanter-avec-fukushima-51b74d9fe4b0de6db9788387 accessed June 25, 2016. The top five are the largest national newspapers in Japan. The Tokyo daily Shinbun is known for its opposition to civilian nuclear power. Chûgoku Shinbun is the Hiroshima regional daily newspaper. Finally, the last two are the local daily newspapers of Fukushima Prefecture. See “Shunjû Gei wa “iki” to “fukai” shika nai”, Nikkei Shinbun, 17 October 2012, p. 1.

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31 See “Kochira wa tokuhôbu Waraenai jôdan o yamete Futsukokuei TV Genpatsu neta “Aku shumi” Kokunai kara hihan Dokuzetsu OK Demo sensu hitsu”, Tôkyô Shinbun, 17 October 2012, p. 1. 32 See “Kiryû”, Yomiuri Shimbun, October 20, 2012, p. 10. 33 See “Kiryû”, Yomiuri Shimbun, October 23, 2012, p. 16. 34 As was seen in the premises of Charlie Hebdo, but also in Niger after the publication of 7 million copies of the special post-attack issue.

References Bleich, E. (2012). Free speech or hate speech? The Danish cartoon controversy in the European legal context. In K. R. Khory (ed.) Global Migration: Challenges in the Twenty-First Century (pp. 113–128). London: Palgrave Macmillan. Calvès, G. (2015). Les discours de haine et les normes internationals. Esprit, vol. octobre, no. 10, 56–66. Charaudeau, P. (2015). L’humour de Dieudonné: le trouble d’un engagement. In P. Charaudeau (dir.) Humour et engagement (pp. 135–182). Limoges: Lambert Lucas. Crilan (collectif) (1980). 140 dessins contre le nucléaire. Crilan: Les Pieux. Daliot-Bul, M. (2009). Japan brand strategy: The taming of “Cool Japan” and the challenges of cultural planning in a postmodern age. Social Science Japan Journal, 12(2), 247–266. Favez, J.-C., & Mysyrowicz, L. (1987). Le nucléaire en Suisse: Jalons pour une histoire difficile. Lausanne: L’Age d’Homme. Gamson, W. A., & Modigliani, A. (1989). Media discourse and public opinion on nuclear power: A constructionist approach. American Journal of Sociology, 95, 1–37. Gamson, W. A., & Stuart, D. (1992). Media discourse as a symbolic contest: The bomb in political cartoons. Sociological Forum, 7(1), 55–86. Houdebine-Gravaud, A.-M., & Pozas, M. (2006). De l’humour dans les dessins de presse. Questions de communication, 10, 43–64. Ibaragi, M. (2007). Media no naka no Manga – Shinbun hitocoma manga no sekai. Tokyo: Rinsen shoten. Kuipers, G. (2011). The politics of humour in the public sphere: Cartoons, power and modernity in the first transnational humour scandal. European Journal of Cultural Studies, 14(1), 63–80. Mbongo, P. (2007). Les caricatures de Mahomet et la liberté d’expression. Esprit, 145–149. Mizuide, K. (2016). 2020 nen Tôkyô Orinpikku・Pararinpikku kaisai kettei to tasha ―Terebi hôdô o jirei ni – . Spôtsu shakai kenkyû, 24(1), 79–92. Ory, P., Delporte, C., Tillier, B., Bihl, L., Pierrat, E., et al. (2015). La caricature . . . Et si c’était sérieux ? – Décryptage de la violence satirique. Paris: Nouveau Monde Editions. Pillay, K. (2010). The cartoon wars: Free speech or hate speech? South African Law Journal, 127(3), 463–489. Rifas, L. (2007). Cartooning and nuclear power: From industry advertising to activist uprising and beyond. PS: Political Science & Politics, 40(2), 255–260. Stewart, R. (2015). Breaking the mainstream mold: The birth of a local political cartoonist in post-3.11 Japan. The European Journal of Humour Research, 2(4), 74–94. Uchikawa, Y., & Arai, N. (eds.). (1983). Nihon no jânarizumu: Taishû no kokoro o tsukanda ka. Tokyo: Yûhikaku.

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van Noorloos, M. (2015). Des mots qui blessent dans un monde globalisé. Esprit, vol. octobre, 10, 45–55. Vauclair, J. W. (2015). Local laughter, global polemics understanding Charlie Hebdo. European Comic Art, 8(1), 6–14. Wells, M. (2006). Satire in constraint in Japanese culture. In J. M. Davis (ed.) Understanding Humor in Japan (pp. 193–212). Michigan: Wayne State University Press.

Newspapers Jyllands-Posten, Muhammeds ansigt, 30 September 2005, KulturWeekend, p. 3.

Websites www.leparisien.fr/culture-loisirs/italie-un-dessin-de-charlie-hebdo-sur-le-tremblementde-terre-fait-polemique-02-09-2016-6089069.php, last accessed January 3, 2018. www.lemonde.fr/afrique/article/2017/06/05/apres-les-propos-choquants-de-macron-lescomoriens-exigent-des-excuses_5139073_3212.html, last accessed January 3, 2018. www.coe.int/en/web/freedom-expression/hate-speech, last accessed December 26, 2017. https://rm.coe.int/media-regulatory-authorities-and-hate-speech/16807338f5, last accessed on July 16, 2018. http://apjjf.org/2014/11/26/Mary-Knighton/4140/ article.html, last accessed December 27, 2017. www.caricaturesetcaricature.com/article-satire-malentendu-et-liberte-d-expression-lesguignols-et-le-japon-73843245.html, last accessed on July 20, 2018. www.leparisien.fr/tv/gag-de-ruquier-france-2-presente-ses-regrets-au-japon-16-10-2012– 2238515.php accessed last on June 25, 2016. www.dhnet.be/sports/football/division1/standard/kawashima-on-ne-peut-pas-plaisanteravec-fukushima-51b74d9fe4b0de6db9788387, last accessed June 25, 2016.

6

Hate and threat in French jihadist discourse Laura Ascone

Introduction Recent terrorist attacks by the Islamic State in Western Europe have led researchers and experts to investigate the different facets of the jihadist radicalization such as the psychological and the sociological ones. Even though researchers have divergent opinions about the role played by the Internet in the jihadist radicalization, it is acknowledged that communication is crucial in the activity of the terrorist group. Yet, research to date has tended to focus more on the strategies adopted by the extremists to spread the jihadist ideology than on the language itself. This chapter investigates the rhetorical strategies that are used by the Islamic State and that may lead an individual to act in the name of the jihadist ideology. More precisely, since terrorist propaganda aims at both terrorizing the enemy and persuading the jihadist sympathizer, we consider hate speech to play a crucial role in this double goal. Therefore, the objective of this chapter is to examine the way hate speech and threat are verbalized in the jihadist propaganda as well as how the expression of threat against the enemy may appear persuasive to the sympathizers of the Islamic State. The study was conducted on the first nine issues of Dar al-Islam, the French official online magazine of the Islamic State. The combination of both quantitative and qualitative approaches allowed us to examine the general features of the French jihadist propaganda, namely by using the software Tropes, as well as the specificities of the expression of threat. After having presented the role played by hate speech and threat in the jihadist propaganda, we will show the way threat is conveyed from both a pragmatic and a lexical perspective.

Hate speech and threat Hate speech Before investigating hate speech and threat in jihadist propaganda, these two notions will be examined from a social as well as linguistic perspective. Hate speech is defined as a force exerted on someone through language, either voluntarily or unintentionally (Bellachhab & Galatanu, 2012). The fact that hate

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speech may be produced unintentionally implies that it depends on the way the addressee interprets the message. When the speaker and the addressee interpret and perceive the same sentence differently, discourse may become violent. On the contrary, when aiming at hurting his or her interlocutor, the speaker will address a message that, according to his or her own interpretation, hurts. Hate speech is both a situational and an interactional action (Auger et al., 2010): it is therefore produced within an interaction between two or more individuals, and it depends on both the context and the enunciative situation in which it is verbalized. The fact that hate speech is context related and that it depends on the kind of relationship of the two interlocutors as well as on the way the message is interpreted makes hate speech detection and categorization subjective and, therefore, challenging. Furthermore, hate speech, whether deliberate or not, elicits negative affective reactions, like humiliation, sadness or fear. One of the main debates on hate speech concerns its connection with emotions and ideologies. According to Van Dijk (2006), ideologies are shared by a community and constitute the basis a society builds on. On the contrary, emotions are experienced individually by the different community members, and not by the community itself. For instance, racism is not a negative emotion against migrants; rather, it is a negative opinion on them. More precisely, a negative opinion on migrants can last over time, whereas one cannot feel anger against them for a long time.1 It is for this reason that ideologies depend on the individuals’ socio-cognitive schemes, rather than on the emotions they can experience. Yet, these ideologies may be verbalized through the expression of emotions. For example, when a terrorist attack is led by an immigrant, anger against immigrants may be felt and expressed in relation to a specific event, and not to the general negative opinion an individual may have on immigrants. In other terms, anger, like any other emotion, depends on a stimulus and not on an ideology. Since ideologies are independent from emotions and hate speech builds on ideologies that are shared by the members of a community (Tsesis, 2002), we can say that hate speech does not build on emotions. However, researchers like Plantin (1997), Doury (2012) or Vincent and Bernard Barbeau (2012), state that insult, which is part of the threatening speech act and, therefore, of verbal violence, has an emotive dimension, for the speaker expresses his or her negative emotion against his or her addressee. Yet, as Bernard Barbeau (2012) affirms, the nominalization as well as the enunciative context of the insult give information about both its causes (i.e. the stimulus) and its consequences (i.e. the perlocutionary effect). This shows the link between the insult and a specific event constituting the stimulus of the emotion that is experienced and expressed. Contrary to hate speech in general, which builds on ideologies, insult is elicited by a specific event in a specific situation. Since verbal violence and all its forms of expression such as insults and threats aim at acting on the addressee as well as on the context in which the message is produced, it can be characterized and described as a speech act. According to Bellachhab and Galatanu (2012), verbal violence aims at making the addressee act in a certain way: the speaker aims then at eliciting an emotional as well as a

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physical reaction, which goes against the addressee’s will. This discrepancy between the action the speaker aims at eliciting and the addressee’s will may lead to a conflict between the two individuals and elicit negative affective states in the addressee, who would feel forced to act against his or her will. Consequently, as stated before, verbal violence effects depend exclusively on the addressee’s perception and interpretation of the message he or she is addressed. Hate speech in the jihadist discourse In hate speech, like in any type of verbal violence, the other plays a crucial role. More precisely, verbal violence builds on the image the speaker has of the other as well as on the image the speaker believes the other has of him or her (of the speaker). In the jihadist discourse, this other represents any individual not adhering to the jihadist ideology and, therefore, not belonging to the community the speaker belongs to. What is important is that the jihadist discourse, which will be presented and examined in the following sections, addresses a readership that has already adhered to the jihadist ideology and that shares the speaker’s point of view. Therefore, hate speech against the other does not directly address the other, who has little, if not any, chance to have access to this discourse. In this case, the readership witnesses the other’s diminishment (Lagorgette & Larrivée, 2004), and can form a coalition either with the speaker or with the hate speech addressee. Since the jihadist discourse does not address the other, he or she cannot intervene to counter hate speech nor to convince the witness to form a coalition with him or her rather than with the speaker. This way, the speaker has the possibility to create or reinforce the coalition with the witness (Goffman, 1967). In other terms, hate speech against the other aims at persuading the witness who, in our case, corresponds to the jihadist discourse addressee. We will see how the expression of threat may be perceived as persuasive and fascinating to the eyes of the jihadist discourse addressee. In order to incite to violent action against the other, the jihadist discourse underlines the fact that the Muslim community is a victim of the West and that, therefore, it is legitimate and necessary to act against the oppressor. Consequently, when the jihadists act against the other, they embody the figure of both the victim and the assailant. Likewise, the act embodies both the violence suffered and the violence provided (Dei, 2016, 69). Jihadists aim at reversing the roles and turning the disdain the society feels for them into fear. Khosrokhavar (2014) calls this status “negative hero” since it is from the fear the society has of them that they draw their glory (27). Furthermore, violence against the other is not perceived as such by the members of Daesh.2 Rather, it is perceived as the triumph of Islam and of God’s will (Adonis, 2015). The fact that they perceive violence as something positive shows that a concept, an action, or, from a linguistic perspective, a sentence, may be interpreted in completely different ways, according to the individual’s socio-cognitive schemes. This contrast in both values and emotions constitutes one of the bases the jihadist community builds on. Daesh wants the individual to act according to two feelings only:

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hate and love, where one is the consequence and the cause of the other (Fifi, 2015, 20). More precisely, the love for Islam and for the other members of the jihadist community characterizes the relation between the individual and his or her community. However, in order to defend its community, perceived and presented as a victim, Daesh promotes a violent action against the enemy, fuelling the hate against it. Love is then the cause of hate. Likewise, hate against the other reinforces the link to the community and, consequently, strengthens the love for it. Here, love is the consequence of hate. Jihadist discourse develops exactly in this way: it both makes hate against the other interact and coexist with the love for the community, and links violence to positive notions and consequences. It is this specificity that makes the expression of hate and threat difficult to detect. This double movement is endowed of a persuasive function, where the link between negative and positive feelings is explicit (example 1). 1

Nos frères ont pris plaisir à jouer au football avec la tête de l’ennemi. Ils l’ont fait avec amour, au nom d’Allah, sans haine, ni mauvais sentiment. [Our brothers took pleasure in playing football with the enemy’s head. They did it with love, in Allah’s name, without hate nor bad feelings.]3

This example was taken from the documentary “Les Ch’tis d’Allah,”4 As we can see, the speaker uses positive-valence terms like “took pleasure,” “with love,” and “without hate, nor bad feelings,” to describe an extremely negative and violent action. This combination aims at both showing Daesh’s sympathizers that only positive emotions and feelings are felt when combating against the enemy, and anaesthetising them to violence and death. This way, the addressee would not perceive the violence that action conveys. Rather, this kind of discourse fascinates jihadist sympathizers and leads them to join the fight against the other. Furthermore, referring to Allah (“in Allah’s name”), the speaker shows that this extremely violent action is justified because it has been made in his name. Therefore, in order to be seen as a good Muslim by Daesh, the addressee would feel obliged to follow the example of the jihadists “playing football with the enemy’s head.” In a more implicit way, this excerpt expresses a threat against any individual not adhering to the jihadist ideology because, according to Daesh, he or she is an enemy whose head might, if not should, be used to play football. In other terms, according to the addressee’s socio-cognitive schemes as well as to whether he or she considers him or herself a member of the jihadist community or the other, the excerpt may be perceived in two different ways: persuasive and fascinating to the individual considering him or herself member of the Daesh; threatening to those who, on the contrary, do not share the speaker’s point of view. From hate to threat According to Plantin (2011), negative emotions like anger are characterized by an operation of control, aiming at identifying those responsible for these negative

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emotions and followed by an act of revenge. In the case of the jihadist discourse, the operation of control has already taken place. In its discourse, Daesh presents the Muslim community as a victim of the West. Therefore, those responsible for the Muslims’ situation have already been determined. What Daesh aims at inciting is then the act of revenge which, in its discourse, corresponds to threat. In other terms, in jihadist discourse, hate speech is verbalized through the expression of threat. As far as threat is concerned, based on Searle’s speech acts classification, Weill (1993) considers threat an assertive act: the proposition is expressed in a precise and vigorous way by the speaker. It is also a directive act, through which the speaker leads his or her interlocutor to act even against his or her will. Furthermore, threat is considered also both a promissive act, where the speaker commits to accomplishing a certain action, and an expressive act, which can be caused, for instance, by hostility and/or resentment. However, according to Weill (ibid.), threat is not a declarative act because the speaker does not intend to accomplish what he or she committed to. On the contrary, the speaker’s goal is only to lead his or her interlocutor to react and act. This analysis investigates the speaker’s intentions when expressing a threat. Yet, not having access to the interlocutors’ reactions, it was impossible to verify the effects of these expressions of threat on the addressee. Pragmatics and, more precisely, Searle’s (1969) speech acts theory and Weill’s (1993) description of threat, constituted the theoretical basis for this study. However, not only was attention paid to the pragmatic-discursive perspective; it was paid also to the syntactic and lexical dimension of the expression of threat. In the jihadist discourse, when threat is against the readership, which, as stated before, is a jihadist sympathizer, it is expressed implicitly in most of the cases. Since the jihadist discourse addresses a readership that has already adhered to the jihadist ideology, its objective is to lead him or her to act in the name of this ideology. To do so, a series of obligations and prohibitions are imposed to the reader in order to push him or her to behave in accordance to the jihadist ideology. This imposition implies that if the reader does not follow this obligations and prohibitions, he or she will have to face negative consequences. Furthermore, as stated before, a message becomes violent only if the addressee perceives it as such. The sentence “you are not Muslims,” for example, will be perceived as a simple assertion by any individual not adhering to the jihadist ideology, whereas, according to the jihadist interpretation, not being Muslim implies being an enemy of Daesh that must be fought. Therefore, in order to identify the expression of threat in a discourse, it is necessary to consider the enunciative situation, the discourse addressee, but also the speaker and, more precisely, his or her socio-cognitive schemes. Furthermore, according to Bakhtine (1977), any sentence is an answer to something. Consequently, to understand the full meaning of a sentence, it is necessary to consider the context in which it is produced, which may be sociological, psychological, historical, etc. It is then for this reason that, especially when investigating specific discourses like the jihadist one, the use of software should be combined with a qualitative analysis that would allow the researcher to verify and refine the results obtained by the quantitative investigation.

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Corpus and methodology This analysis was conducted on the nine issues of Dar al-Islam, the French official magazine published online by Daesh and, more precisely, by Al Hayat Media Center. Even though the magazine is published on the web, it is presented as a paper magazine; tables of content, photo coverage, interviews, etc. can be found in each number. Dar al-Islam, which is not a translation of the English jihadist magazine Dabiq, was published for the first time on December 2014, and addresses French-speaking readers only. As stated before, it addresses a readership that has already adhered to the jihadist ideology. Therefore, its goal is not to persuade the reader to adopt a jihadist vision of the world. Rather, it aims at reinforcing the reader’s adhesion as well as leading him or her to act in the name of the jihadist ideology. To date, Dar al-Islam counts nine numbers, for a total of 229,762 words. In order to analyze the way threat is expressed in Dar al-Islam, a quantiqualitative approach was adopted (Garric & Longhi, 2012; Rastier, 2011). This double approach aims at overcoming the limits of a purely either qualitative or quantitative analysis. In the 1990s, the quantitative and statistical approach in linguistics became a subject of interest again, namely thanks to the use of software of both textual and content analysis, which allow to examine large corpora, to have a general vision of them, and to obtain statistically significant results. The quantitative approach highlights statistically significant features, but it tends to leave aside the cases that draw away from the general tendency and that may prove to be interesting and important to consider. As far as the qualitative approach is concerned, it allows more in-depth and extensive examination of limited-size corpora. This way, the linguist can investigate characteristics and specificities that might pass unnoticed when adopting a quantitative approach. This is in accordance with the distinction made by Paveau (2014), between the quantitative approach aiming at studying what is said and the qualitative one, whose goal is to analyze the way the message is verbalized. Even though the qualitative approach allows to explore a corpus in depth, it cannot be adopted for large-size corpora. This implies that the results obtained can hardly prove to be statistically significant. In this study, a double qualitative and quantitative approach was adopted (Mayaffre, 2014). This way, it was possible to overcome the limits of each approach. After having studied the jihadist ideology, the radicalization process, and the linguistic characteristics of hate speech, a quantitative analysis was conducted with the software Tropes, which allows to investigate a text from a semantic perspective. More precisely, based on a pre-established lexicon, the software identifies the themes tackled in the text, and shows how these themes are linked to one another. The most frequent themes in Dar al-Islam are religion and conflict. However, to study the way threat is expressed in the corpus, a deeper qualitative analysis was conducted on the theme sentiment [feeling]. In other terms, the quantitative analysis constituted the basis for a qualitative study, which was then conducted only on the expressions conveying threat. Particular attention was paid to the link between cause and threat in order to see whether the

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expression of threat is preceded, followed or independent from the expression of its cause. The content of the different expressions was investigated as well. Finally, the syntactic and lexical dimension of the expression of threat was investigated. The combination of both quantitative and qualitative approaches allowed us to examine jihadist discourse in relation to the context in which it was produced (Valette & Rastier, 2006).

The expression of threat in the jihadist discourse Different types of threat In the category considered by the software Tropes as referring to the sentimental sphere, 161 sentences expressing or describing threat were counted. As already mentioned, two different types of threat can be identified in the jihadist discourse: the threat against the other and the threat against Muslims. Yet, examining these expressions more in depth, four classes of threat were identified: direct threats against Muslims, direct threats against the other, descriptions of violent actions and events, and incitements to act against the other. Table 6.1 shows the frequency of the different types of threat as well as their structure: causethreat (C-T), threat-cause (T-C), threat (T), and cause (C). The distinction between threat description and threat expression, that is between the category Descriptions and the other categories, was based on their linguistic features. When the sentence presented a verb in a present tense form (which is used to express a general truth that is supposed to be shared by both speaker and addressee) or in a past tense form (events or actions’ descriptions), it was categorized as a description. On the contrary, every sentence presenting a verb in a future tense or in its imperative form was considered as a direct threat or as an incitement. Direct threat against the other and Muslims As Table 6.1 shows, in the French jihadist discourse, direct threats against the other are more frequent than those against the Muslim community which, as stated before, are the negative consequence of not respecting the obligations and/or prohibitions that are imposed on the readership by the speaker. Table 6.1 Frequency of the different types of threat and of their structures in Dar al-Islam Dar al-Islam

Against the other

T-C

15

4

41

11

71

C-T

5

5

34

4

48

T

10

1

23

6

40

C

0

0

2

0

2

30

10

101

21

161

Tot.

Against Muslims

Descriptions

Incitements

Total

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2 “Je vais jeter l’effroi dans les cœurs des mécréants. (Dar al-Islam, n°9, p. 21) [I will instil fear in disbelievers’ hearts] Example 2 presents a direct threat against the enemy and, more precisely, against the disbelievers (mécréreants, in the French excerpt). Here, it is the future tense as well as the lexeme effroi [fear] that make the sentence threatening. As for the cause of the threat, it is verbalized through the lexeme mécréants. In jihadist ideology, disbelievers are one of the main enemies of Islam that must be fought and defeated. Description of violent and threatening actions Contrary to the expression of threat, the description of violent and threatening actions is characterized by the use of verbs in the present tense, that expresses a shared truth, or at the past tense, used to describe events. 3 Ibn Taymiyyah: ‘Celui qui n’adore pas Allâh par orgueil n’est pas musulman et celui qui adore avec Allâh d’autre que Lui n’est pas musulman.’ (Dar al-Islam, n° 3, p. 11) [Ibn Taymiyyah: ‘The one who does not adore Allah by pride, is not Muslim, and the one who adores, together with Allah, others than him, is not Muslim.’] Example 3 is a quote by Ibn Taymiyyah, one of the most extremist mediaeval Islamic scholars and one of Daesh’s most quoted references. The verbs in the present tense show that it is a truth shared by the speaker and the readership. As far as the threat is concerned, it is expressed by “is not a Muslim” (n’est pas musulman, in French). For any individual not adhering to the jihadist ideology, this is a simple statement, whereas for anyone sharing the jihadist point of view, not being Muslim is perceived as negative. The double interpretation of violence depends on the interlocutors’ socio-cognitive schemes. According to the jihadist point of view, violence, whether verbal or not, is not perceived as such since it is seen as an action conducted in the name of a good and noble cause (De Bonis, 2015); violence is presented as the triumph of Allah’s will (Adonis, 2015). Incitement to commit violent action against the other An additional element showing that French jihadist discourse is focussed more on the other than on the Muslim community, is the number of sentences inciting the readership to act against the other (example 4).

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4 Déclenche ta ceinture d’explosifs au milieu d’eux, tire sur leurs soldats, incite-les à ne pas combattre les mouwahid, les moujâhidîn et répand le découragement dans leurs rangs, ensuite si tu ne peux pas prendre le dessus sur eux dans leur terre pour appliquer la charî’ah et faire allégeance au calife ouvertement et que tu ne peux les attaquer dans leur terre et les tuer pour défendre le califat, alors émigre vers la terre du califat, car elle est la meilleure des terres vers laquelle tu peux faire hijrah vers Allâh. (Dar al-Islam, n° 5, p. 16) [Shoot your explosive belt among them, shoot on their soldiers, incite them not to fight the mouwahid, the moujâhidîn, and spread discouragement in their ranks. Then, if you cannot take control of them in their territory to enforce the charî’ah and make allegiance to the caliphate openly, nor can you attack them in their territory and kill them to defend the caliphate, then migrate to the caliphate, because it is the best territory to which you can make the hijrah to Allâh.] The series of imperatives shows that the speaker incites his or her readership to act against the enemy. The use of possessive adjectives like “their soldiers” (leurs soldats, in French) or “their ranks” (leurs rangs) marks the opposition between the community both the speaker and the reader belong to, and the other. This opposition reflects the jihadist dichotomist vision: good vs. bad, licit vs. illicit, believers vs. disbelievers, etc. Furthermore, the speaker aims at giving the readership the impression to have a determining role within the jihadist community. Acting against the other has a defensive and heroic function (“kill them to defend the califate”). The reader is then incited to act against the enemy so that the caliphate cannot be defeated by the West. Furthermore, the verb “defend” implies that the Muslim community is a victim of the West. The feeling of victimization is often exploited by Daesh to justify and incite to act against the other. Lexical analysis of the expression of threat in the jihadist discourse So far, we have examined the content of the sentences expressing or describing a threat. In this section we will focus on the lexicon employed in French jihadist discourse, and upon which this selection was based. Investigating the lexicon that constituted this corpus more in depth, different types of emotions and actions expressing a threat were identified. Emotions felt by the other As stated before, threat and more generally hate speech, address the individual in relation to which the speaker wants to place him or herself in a higher and dominant position. In the jihadist discourse, for instance, Daesh places itself in a power relationship with the enemy. One of the Daesh’s main goals is to terrorize

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the other rather than kill him; in other terms, everything builds on the emotions that the speaker expressing a threat aims at eliciting in his or her addressee. We find this category, which is the most frequent one, the most prototypical expression of threat. We named this category “emotions felt by the other” because the lexicon constituting it belongs to the lexical field of fear, considered one of the six basic emotions, together with anger, sadness, joy, disgust and surprise (Ekman, 1992). Fifty-two occurrences of terms referring to the fear felt by the threat addressee were identified. The most-frequent ones are peur ([fear]; seventeen occurrences), terreur ([terror]; twelve occurrences), and effroi ([scare]; ten occurrences). 5 Toujours viser les endroits fréquentés, tel que les lieux touristiques, les grandes surfaces, les synagogues, les églises, les loges maçonniques, les permanences des partis politiques, les lieux de prêche des apostats, le but étant d’installer la peur dans leur cœur. (Dar al-Islam 5, p. 33) [Always target crowded places, such as tourist attractions, large spaces, synagogues, churches, Masonic lodges, permanencies of political parties, apostates’ places of preach, with the goal to instil fear in their hearts.] In example 5, the speaker incites his or her reader to act against the other, namely attacking him in crowded places (les endroits fréquentés). What is important is that the speaker clearly states that the goal of these violent actions is to elicit an emotional reaction, in this case fear, in the enemy, rather than to kill him. According to the jihadist perspective, it is the fact that the enemy is scared that would allow Daesh to accomplish its politico-religious plans. The ninth number of Dar al-Islam gives an example of this (example 6). 6 Par l’ampleur de la terreur que les musulmans inspiraient à leur ennemi, ils ont pu conquérir une des plus importantes villes de l’empire perse avec une facilité déconcertante. (Dar al-Islam 9, p. 22) [Due to the terror Muslims instilled in their enemy, they could conquer one of the most important cities of the Persian empire with bewildering facility.] Since eliciting fear in the other is presented as the most powerful weapon to accomplish military successes, the reader would be led to want to fuel this fear, namely by leading terrorist attacks, persuaded that this would allow Daesh to progress in its conquest. Furthermore, this example is characterized by exaggeration: the speaker mentions the terror breadth (l’ampleur de la terreur), the most

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important cities (plus importantes) as well as the bewildering facility (une facilité déconcertante) with which they were conquered. Emphasizing the traits of this event, the speaker aims at both making evident the link between the fear felt by the enemy and the conquest facility, and underlying the difference between the other, highly scared, and the speaker’s community which, on the contrary, conquers territories without any effort. Feelings felt by the enemy The second category is the one including the feelings felt by the enemy. Contrary to the previous category, constituted mainly by the lexical field of fear, this category includes any word referring to the feelings, but not then to the emotions,5 that the threat elicits in the individual or community the threat is addressed to. One of the crucial lexemes of this category is “humiliation,” which is a central notion in the jihadist ideology and propaganda. Presenting the Muslim community as a victim humiliated by the West, Daesh aims at leading its young sympathizers to act against the West, which is the other. 7 D’après Ibn ‘Omar (Qu’Allâh soit satisfait d’eux) le Prophète (paix et bénédictions sur lui) a dit: Ma subsistance a été placé sous l’ombre de ma lance, et l’humiliation et la bassesse a été donné à tous ceux qui s’opposent à mon ordre. (Dar al-Islam 1, p. 7) [According to Ibn ‘Omar, the Prophet said: “my subsistence was placed under my spear’s shadow, and humiliation and baseness was given to those opposing my order.] In example 7, the speaker presents a quote by the Prophet, describing a past threatening event. As stated before, threat against Muslims is often presented as a consequence of the non-respect of the obligations and/or prohibitions imposed on the individual. Here, humiliation is the consequence that those who opposed the Prophet’s order had to face. This quote implies that this can be reproduced for the Muslims that, today, do not adhere to the jihadist ideology and that do not obey Daesh’s orders. We could then say that, this way, Daesh indirectly places and presents itself at the same level as the Prophet, since, according to Daesh, Muslims will be humiliated if they do not follow Daesh’s orders, exactly like those who were humiliated because they opposed the Prophet’s. This way, the reader might associate Daesh to the Prophet, and would then be led to follow any prescription imposed by Daesh. Threat’s cause Certain sentences did not present a lexicon directly expressing a threat. Certain terms, interpreted according to Daesh’s worldview, imply a threat even though, if

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extracted from their context, they might seem neutral. In the French jihadist discourse, 25 occurrences of lexemes implying a threat were counted. More precisely, six occurrences of the term mécréants [disbelievers] and mécréance [disbelief] were identified. According to Daesh, not adhering to the jihadist ideology is not acceptable and must be fought. Being considered by Daesh as a disbeliever means being considered an enemy that must be defeated. In order to identify all the expressions of threat, it is then necessary to know the context in which the discourse was produced as well as the speaker’s worldview, which might constitute a limit when analyzing a text exclusively with software based on preestablished lexicons. Threat’s consequences Not only can threat be expressed through its cause, that is through what may imply a threatening action, but it can be expressed also through the negative consequences that such action might lead to. In French jihadist discourse, where 25 occurrences were counted, we can find terms like défaite [defeat] or ne plus être en sécurité [not being safe anymore]. In this category, not only is the consequence expressed by terms indicating the threat’s consequence, it can be expressed also by expressions like vous en paierez le prix [you will pay for that], occurring five times (example 8), or vous vous mordrez les doigts [you will have yourself to blame], that occurs only once (example 9). 8 Plutôt, vous en paierai le prix lorsque vous marcherez dans vos rues en vous retournant par peur des musulmans et vous ne serez plus en sécurité même dans vos chambres. (Dar al-Islam 7, p. 4) [Rather, you will pay for that when you will be walking in your streets looking back, afraid of Muslims, and you won’t be safe anymore even in your rooms.] Here, the speaker presents as threatening the consequence that Daesh’s enemy will have to face, namely the fear felt when walking on the streets or even at home. It is then the expression “you will pay for that” that constitutes the negative consequence that Western countries will have to face. In this example, the expression “you will not be safe anymore” can be found as well. In both cases, the verb in the future tense indicates that it is a direct threat against the enemy and that the speaker addresses the threat directly to his or her enemy even though he (the speaker) is aware of the fact that the enemy is not likely to receive the message. Once more, fear is presented as Daesh’s goal, since it would be the price to pay for all the West has done, according to Daesh, to the Muslim community. As stated before, Daesh’s goal is to turn the violence suffered into violence against the other. The fear or the adversity felt by Daesh sympathizers for

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the society they live in, would then be transformed into the fear the society would feel for them. 9 Si vous choisissez la troisième solution et que vous vous entêtez dans votre orgueil et vos illusions, très bientôt vous vous en mordrez les doigts de regret, par la permission d’Allah. (Dar al-Islam 9, p. 18) [If you choose the third option and if you stick with your pride and illusions, you will shortly have yourself to blame because of regret, by Allah’s permission.] Contrary to example 8, which directly addresses the speaker’s enemy, example 9 presents a threat addressed to the members of the community the speaker belongs to. The negative consequence that the addressee might face comes from the nonrespect of the obligations and/or prohibitions imposed on the readership by Daesh. It is then for this reason that the sentence starts with si vous . . . [if you . . .]: the speaker presents what would happen if the reader did not behave as indicated. Like in the previous example, the future tense indicates it is a direct threat against the addressee, in this case Daesh’s sympathizers and, more generally, any Muslim. When threat is verbalized through a noun group or an expression like those we have seen in these two examples, its detection using a software might prove difficult, if not impossible. It is for this reason that we considered necessary to combine the quantitative analysis conducted using the software Tropes, with a qualitative one, manually investigating the quantitative results. These two expressions (examples 8 and 9), for instance, were not identified by the software. Emotions and feelings felt by the threat actor Part of the threats either expressed or described are conveyed by the verbalization of the emotion felt by the threat actor. We talk of “actor” and not of “speaker” because, in some cases, the speaker reports a violent event or a threatening action that took place in the past and that, therefore, was neither uttered nor conducted by the speaker itself. In this category, we can find terms like haine [hate]. These are negative emotions and feelings that are felt by the actor and that led him or her to threaten or to act against his or her enemy. These emotions and feelings always imply an other against which threat is addressed. 10

Entre vous et nous, l’inimitié et la haine sont à jamais déclarées jusqu’à ce que vous croyiez en Allâh, seul. (Dar al-Islam 3, p. 12) [Between you and us, enmity and hate are eternally declared, until you believe in Allah only.]

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Example 10 is an excerpt of sura 60, which was quoted in the third issue of Dar al-Islam. As stated before, Daesh introduces in its discourse excerpts of sacred texts reflecting jihadist ideology, in order to legitimize and justify any violent action against the other. This example suggests to the reader that it is right to hate anyone who is not Muslim and that, therefore, jihadist violent action against the other just follows the sacred texts’ indications and teachings. Furthermore, like in the previous example, hate is a feeling that addresses an other; it is then an individual-based feeling. Here, the speaker clearly shows that hate is addressed to someone, whom the speaker gives only one possibility to make hate vanish. By stating jusqu’à ce que vous croyiez en Allah, seul [until you believe in Allah only], the speaker suggests the addressee that the only possibility to make hate vanish is to believe in Allah and to become a member of the community the speaker belongs to. This is a way to express the jihadist dichotomist vision of the world: you are either with them or against them. Threatening action In most cases, threat is expressed through the action the actor undertakes against the other. This category includes the actor’s actions as well as the means he used to threaten or act against the other. Fifty occurrences of this category were identified. The lexicon includes verbs like combattre [fight], châtier [punish] or frapper [hit], and terms such as explosive [explosive], which does not indicate the action itself, but the means used by the actor to act against the other. Certain expressions belonging to this category, like l’avancée du califat [the caliphate advance] may appear neutral when extracted from their contexts, whereas, if interpreted according to the jihadist perspective, they express a threat against the other. The caliphate advance, which can be seen as a simple statement, actually implies the fact that any individual who neither is Muslim nor does he adhere to the jihadist ideology, will be fought (example 11). Not only is it the lexicon that determines whether a sentence is threatening or not; the context as well influences and modifies the meaning of certain terms and/or expressions. 11

Vous ne pourrez alors pas arrêter l’avancée du Califat quoique vous rassembliez comme troupes, que vous complotiez ou que vous fassiez. (Dar al-Islam 9, p. 18) [You will not be able to stop the caliphate advance whatever troop you gather, whatever you plot, whatever you do.]

This example clearly shows that the caliphate advance is not simple information the speaker gives his or her addressee. Rather, it is a warning and a way to announce the caliphate strength, and that it will be able to overcome any obstacle, to fight and, consequently, to win. The other is presented as someone who, whatever he or she does, will not be able to face Daesh’s strength. On the

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contrary, to those sharing the jihadist point of view and considering themselves members of the caliphate, this sentence will not appear as threatening. Rather, they will be persuaded that Daesh’s victory is ensured and that, therefore, if they fight for Daesh, they will have the possibility to become “Allah’s soldiers” and win against disbelievers. Actions eliciting emotions and feelings in the other In some of the sentences, threat is expressed or described through an action led by the actor in order to elicit an emotion in the addressee. Contrary to the category of the “emotions felt by the other, here the focus is on the actor and more precisely on his or her action, and not on the other and what he or she feels. Even though, as stated before, Daesh’s goal is to terrorize the enemy and elicit negative emotions in him or her, this category is the least frequent in the jihadist discourse. Three occurrences were identified, where the verbs humilier [humiliate], jeter la crainte [instil fear] and terroriser [terrorize] occurred (example 12). As these verbs show, the action led by the actor aims at humiliating and terrorizing the enemy. 12

Ne vas-tu pas secourir tes frères en jetant la crainte dans le cœur des adorateurs de la croix? (Dar al-Islam 2, p. 6) [Won’t you rescue your brothers instilling fear in the cross worshippers’ hearts?]

As this example shows, attention focuses on the actor’s action, which is instilling fear in the other, rather than on the fear felt by the cross worshippers. In order to incite the readership to act against the other, the speaker presents the sentence as a negative question (“won’t you . . .?”). This aims at showing the following action, that is instilling fear, as something that Daesh expects the reader to do. Furthermore, since this example was taken by a magazine and not by a conversation, the speaker cannot receive any answer by the reader. It is then a question that aims at inciting the reader to act. The negative form, instead, aims at implicitly insisting on the fact that if the reader did not do what is expected to, he would risk facing negative consequences since, according to Daesh’s perspective, either one belongs to the jihadist community, or he or she is its enemy. Formulated in this way, the question acquires a threatening tone aiming at leading the reader to act against the other.

Conclusion Following the jihadist attacks against Western Europe, researchers and experts have started analyzing the phenomenon from different points of view: among others, the psycho-sociological factors that may lead an individual to adhere to the jihadist ideology and act in its name, and the cyber-strategies adopted by

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terrorists to spread the jihadist ideology. However, little attention was focussed on the jihadist communication from a purely linguistic perspective. The objective of this chapter was to investigate the role of hate speech and threat in the French jihadist propaganda as well as how they are verbalized. The analysis revealed that threatening the enemy often implies persuading the jihadist sympathizers. Furthermore, the qualitative analysis allowed us to identify different types of threat as well as different ways of verbalizing it that might have remained unnoticed, had we adopted a quantitative approach only. Four types of threat were identified: the one against the other, the one against the members of the speaker’s community, the description of threatening events or actions, and the incitements to commit violent action against the other. The French jihadist discourse appears more violent against the other than against Muslims. As for the lexicon used to express or describe threat, this study revealed that threat can be expressed in different ways. It can be conveyed describing the negative emotions and feelings felt by the other, mentioning either the cause or the consequence of the threat. Or can it be expressed focussing on the actor and, more precisely, either on the emotions and feelings he or she felt, or on the action undertaken to elicit negative emotions in the threat addressee. This study revealed also that it is not possible to examine the way threat is expressed without considering the context in which it is formulated, or the different ways the reader may interpret the jihadist message. In other terms, when investigating either hate speech or the expression of threat, it is necessary to consider also the persuasive effect it may have, depending on the reader the message is addressed to.

Notes 1 2 3 4

The average duration of anger is of two seconds (Verduyn & Lavrijsen, 2015). Daesh is the Arabic acronym standing for Islamic State of Iraq and Syria. The translation of the examples was provided by the author. Les ch’tis d’Allah is a documentary by Olivier Pighetti. It was produced in 2011 and is accessible on YouTube. 5 Feelings are considered as “a broad, complex class of subjective personal sensations or states of inner psychological arousal” (Caffi & Janney, 1994, p. 327). Within the class of feelings are emotions; they are triggered by objects or events; they are short in time and measured according to their intensity.

Bibliography Adonis. (2015). Violence et Islam. Paris: Editions du Seuil. Auger, N., Fracchiolla, B., Moïse, C., & Schultz-Romain, C. (2010). Interpellation et violence verbale: essai de typologisation. Corela. Cognition, Représentation, Langage (HS-8). Retrieved from: https://journals.openedition.org/corela/1023. Bakhtine, M., & Volochinov, V. N. (1977). Le marxisme et la philosophie du langage. Paris: Minuit, 1. Bellachhab, A., & Galatanu, O. (2012). La violence verbale: représentation sémantique, typologie et mécanismes discursifs. Retrieved from: http://www.revue-signes.info/ sommaire.php?id=2788.

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Bernard Barbeau, G. (2012). Le bashing: forme intensifiée de dénigrement d’un groupe. Signes, Discours et Sociétés, 8. Retrieved from www.revue-signes.info/document.php? id=2478. Caffi, C., & Janney, R. W. (1994). Toward a pragmatics of emotive communication. Journal of pragmatics, 22(3–4), 325–373. De Bonis, M. (2015). La strategia della paura. Limes, 11. Dei, F. (2016). Terrore suicida. Religione, politica e violenza nelle culture del martirio. Roma: Donzelli Editore. Doury, M. (2012). Chateauraynaud, Francis. 2011. Argumenter dans un champ de forces. Essai de balistique sociologique (Paris: Editions Petra, coll. “Pragmatismes”). Argumentation et Analyse de Discours. Retrieved from http://aad.revues.org/1245. Ekman, P. (1992). An argument for basic emotions. Cognition & Emotion, 6(3–4), 169–200. Fifi, G. (2015). La propaganda dello Stato islamico: come la nuova generazione di combattenti sta cambiando la narrativa del terrorismo. Dissertation defended at Luiss University, Rome. Retrieved from https://tesi.luiss.it/15175/1/070182.pdf. Garric, N., & Longhi, J. (2012). L’analyse de corpus face à l’hétérogénéité des données: d’une difficulté méthodologique à une nécessité épistémologique. Langages, 3, 3–11. Goffman, E. (1967). Interaction Ritual: Essays on Face-to-Face Behavior. New York: Pantheon Books. Khosrokhavar, F. (2014). Radicalisation. Paris: Editions de la maison des sciences de l’homme. Lagorgette, D., & Larrivée, P. (2004). Interprétation des insultes et relations de solidarité. Langue française, 4, 83–103. Mayaffre, D. (2014). “Ça suffit comme ça !,” La fausse opposition quantitatif/qualitatif á l’épreuve du discours sarkozyste. Corela. Cognition, représentation, langage (HS-15). Retrieved from: https://journals.openedition.org/corela/3543. Paveau, M. A. (2014). L’alternative quantitatif/qualitatif à l’épreuve des univers discursifs numériques. Corela. Cognition, représentation, langage (HS-15). Retrieved from: https://journals.openedition.org/corela/3598. Plantin, C. (1997). L’argumentation dans l’émotion. Pratiques: théorie, pratique, pédagogie, 96, 81–100. Plantin, C. (2011). Les bonnes raisons des émotions. Berne: Peter Lang Publishing Group. Rastier, F. (2011). La mesure et le grain: sémantique de corpus. Champion: diff. Slatkine. Searle, J. (1969). Speech Acts: An Essay in the Philosophy of Language. London: Cambridge University Press. Tsesis, A. (2002). Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements. New York, NY USA: NYU Press. Valette, M., & Rastier, F. (2006). Prévenir le racisme et la xénophobie: propositions de linguistes. Langues modernes, 100(2), 68. Van Dijk, T. A. (2006). Discourse and manipulation. Discourse & Society, 17(3), 359–383. Verduyn, P., & Lavrijsen, S. (2015). Which emotions last longest and why: The role of event importance and rumination. Motivation and Emotion, 39(1), 119–127. Vincent, D., & Bernard Barbeau, G. (2012). Insulte, disqualification, persuasion et tropes communicationnels: à qui l’insulte profite-t-elle? Argumentation et analyse du discours, 8. Weill, I. (1993). La menace comme acte de langage: étude diachronique de quelques formules de français. Linx, 28(1), 85–105.

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Dialogues and diversity in Korea, Japan and France The contribution of international law to hate speech legislation in national and transnational contexts Philippa Hall

Introduction Hate speech incidents in Japan, South Korea and France since 2013 have prompted debates about the causes and consequences of hate speech. Measures to curb hate speech in each country have included a combination of research projects, legislation and social policy reforms (Lee, 2014). The series of hate speech incidents that occurred between 2013 and 2015 illustrate that the particular social issues that become the focus of hate speech, and the legal and social policy responses to hate speech incidents, exist and are experienced within the distinct social and cultural parameters of each nation state. As Perry (2001) suggests, hate speech and hate crime can be considered to be social constructs. As social constructs, incidents of hate speech have historical and political contexts. The chapter locates the analysis of national hate speech incidents within the context of the transformation wrought by the global economy upon nation states since the 1980s. In particular, globalization has integrated South Korea and Japan into the global economy as consumer-, rather than mainly export-led, economies. The chapter examines solutions to hate speech, in particular the extent to which international law offers a useful source of law that can inform debates about domestic hate speech legislation and social policy. Japan, South Korea and France are all signatories to United Nations Conventions that have direct relevance to the creation of hate speech legislation in domestic law. However, despite domestic and international initiatives to curb hate speech through the implementation of legislation and social policy, hate violence continues and often appears to delineate the fault lines wrought by social and economic inequality in the three states. The chapter has four sections. The first examines particular hate speech incidents and legislative and social policy responses in South Korea, Japan and France from 2013 onwards. Hate speech debates highlight the post-war social, economic and regional inequalities. The second section considers international law as a resource for domestic law on hate speech, with a particular focus upon the 1965 United Nations International Convention for the Elimination of Racial Discrimination (ICERD). Section three considers the extent to which the shortcomings of international and domestic legislation in curbing hate speech are exacerbated by the

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fundamental transformation wrought by neoliberal globalization upon the politics of the nation-state. Neoliberalism has increased social and economic inequalities within and between nation states, creating a global north and a global south and has transformed capital and labour flows between these spheres (Harvey, 2005; Bellos, 2013). South Korea, Japan and France are all now much more tightly integrated into the global economy following the intensification of neoliberalism in the early 1990s. I suggest that hate speech is perhaps best understood as an expression of the impact of the rise in inequality caused by these global dislocations, coupled with the dwindling of the public sphere of discourse in which open debates that can contest hate speech can occur. In Japan, South Korea and France the globalized economy has contributed three factors that have intensified hate speech: weakened state autonomy, weakened democratic processes and increased social inequality. Japan and especially South Korea have undergone the greatest transformation in the type of integration into the global economy, so with this in mind a greater emphasis is placed upon Japan and Korea in section three. Hate speech is speech without dialogue and dialogue is fundamental to democracy. In section four I analyze hate speech as both an element and a consequence of the diminishment of the sphere of public discourse under neoliberalism. In South Korea, Japan and France hate violence in speech form is often met by calls for hate speech bans. In turn, demands for hate speech bans are often met with calls to uphold rights to free speech. The debate between speech bans and free speech is particularly prominent in France, but occurs in South Korea and Japan also. A stalemate can result in hate speech debates within democracies, as rights to freedom of speech are pitched against rights to hate speech bans (Parekh, 2012; Heinze, 2016). I contend that is it the erosion of the public sphere of discourse, already far advanced, that most threatens people’s rights to freedom of speech. While hate speech bans can curb incidents of discrimination, the protection of debate within the sphere of public discourse offers an enduring solution to hate speech. I approach hate speech as a phenomenon that alerts us to the fundamental and pervasive undemocratic shifts in national and global power that have already occurred. In South Korea, Japan and France the different postwar histories of each state and its location within the global economy are reflected in the form hate speech assumes. In short, I pose two questions. First, while hate speech emerges from particular junctures within the post-war history and politics of each nation state, how far is hate speech shaped by the political transformations that occur as states are integrated into the global economy? Second, is hate speech exacerbated as the democratic processes within nation-states are weakened by globalization? The answers to both questions can inform the legislative and social policy strategies employed to resolve hate speech in local and virtual contexts.

Hate speech in Japan, South Korea and France: analysis, social policy and legislation 2013–2015 Between 2013–15 a series of incidents in Japan, South Korea and France intensified debates on hate speech policy. In Japan hate speech incidents often taken

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the form of protests against the zainichi, Koreans resident in Japan. In South Korea hate speech debates stem from a different experience of migration, in which concerns for anti-Korean discrimination in Japan are coupled with the growing awareness of hate speech against a range of marginalized groups in Korea, including women, the elderly, LBGT people and Chinese migrant labourers (Salmon, 2014; Lee, 2017). In France Holocaust revisionism often fuels hate speech incidents, whilst the 2015 Paris terrorists attacks increased debates about the right balance to set between hate speech bans and rights to freedom of speech (Stille, 2015). The immediate responses to the 2013–2015 incidents in each country highlight the differences between the three states in how hate speech is manifested and the scale and severity of the policy responses. In France, hate speech was already part of the legal code in 2013. Free speech, and the abolition of blasphemy, dates back to the 1792 Declaration of Rights (Lefebvre, 2009). Although freedom of speech was a defining feature of the French Revolution, no absolute right to free speech, such as the US First Amendment, exists. Anti-discrimination laws curb the freedom of expression. Post-Revolution press laws outlawed discrimination based on race, religion or nationality. Freedom existed to attack ideas but not to attack people. (Stille, 2015). The anti-Semitic prejudice that had undermined equality during the 1890 Dreyfus Affair in the Third Republic persisted during the twentieth century. In the 1990s restrictions on freedom of expression continued to be imposed where the Republic’s fundamental value of equality was threatened. Holocaust denial was criminalized in France in the Gayssot Act 1990. Findings of revisionism, in Holocaust denial cases in M’Bala M’Bala v France1 and findings of incitement to racial discrimination in Soulas and Others v France,2 both showed that French hate speech law can prioritize Article 14 of the European Convention on Human Rights (ECHR), which prohibits the abuse of rights, over Article 10, ECHR, which protects rights to free expression. However, the compulsory silence in schools to commemorate the victims of the 2015 Charlie Hebdo attack, suggested that rights to freedom of opinion and expression in the French state did not extend to the rights of pupils to contest the aims and purposes of the commemoration (Stille, 2015). Hate speech, already on the French criminal code, was moved to the penal code after 2015 in a reform intended to prevent the celebration of terrorism, but which critics feared might distract from the reform of structural inequalities required to end racist and anti-Semitic discrimination (Chrisafis, 2015). In contrast, neither Japan nor South Korea had hate speech legislation in 2013. In Japan the first hate speech legislation introduced as civil law in 2016. Discrimination against Koreans resident in Japan, directed in 2013 at Koreans attending the zainichi schools which sustain Korean language and culture in Japan, is not new. Anti-Korean hate speech reiterates power hierarchies established when Korean refugees built enclaves in Japan during Japanese colonization (1910–45) and the Korean War (1950–3). However, in 2013 anti-Korean protests increased in severity, often taking the form of face-to-face confrontations outside zainichi schools (Brasor, 2016). Anti-Korean protests in Osaka prompted domestic and international responses; Tokyo city government and the United Nations (2014)

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called for hate speech legislation. The Japanese Diet introduced the first hate speech legislation followed by the 2016 Osaka Ordinance. The 2016 legislation aimed to “eliminate unfair discriminatory speech and behavior . . . against persons originating from outside Japan” and their descendants (Japanese Diet, 2016). Yet some deem the legislation insufficient, a “moral exhortation” which does not introduce criminal penalties nor outlaw hate speech, for causing alarm and distress (O’Dwyer, 2017). There is a sharp contrast to the severity of the 2015 French response hate speech. A 2017 Japan Times editorial called for stronger legislation. The Kawasaki municipal government has sought to implement the hate speech laws by producing guidelines that cover hate speech laws in public spaces. An uncertainty remains over hate speech legislation. Some opponents of hate speech law continue to resist reform, including Makoto Sakurai of the anti-Korean rightist group Zaitokukai, who has that claimed equal citizenship rights should not be extended to Koreans residents (McCurry, 2014). Like Japan, South Korea also did not have hate speech legislation in 2013 (Lee, 2014). Unlike Japan, no hate speech laws were subsequently introduced. Hate speech was an element within a wide range of domestic debates, and often took an online form. On the internet forum, Ilbe, hate speech targeted a number of marginalized and vulnerable groups: women, Jeolla province residents and democracy campaigners. In other fora, Evangelical Christians directed hate speech at LBTQ rights supporters (Lee, 2017). In 2014, debates about hate speech regulation intensified after online attacks against victims of the Sewol ferry disaster (Lee, 2014). South Korean researchers applauded the introduction of hate speech legislation that had occurred in Japan and recommended that Korea should pass antidiscrimination legislation that could encompass the regulation of hate speech (Lee, 2017). The long-standing emphasis on anti-discrimination and conflict resolution in South Korean hate speech debates are apparent in the work of the 2001 National Human Rights Commission of Korea (NHRCK), founded 2001 and Seoul National University’s 2012 Human Rights Centre. Within the Asia Pacific Forum of National Human Rights Institutions, the NHRCK has developed an outreach counselling service for migrant workers in Korea (Asia Pacific Forum, 2013). Furthermore, a 2017 NHRCK report on the concept of hate speech and regulatory measures show that South Korean hate speech policy is applied to a wide range of marginalized social groups and recommends the introduction of legal measures in accordance with international law (Lee, 2017). In Japan, South Korea and France the hate speech incidents that peaked in 2013–15 reflect conflicts that are rooted in colonial history, historical revisionism and discrimination against second and third generation migrants and migrant workers. Differences also exist between the post-war (1945–75) experience of France in contrast to Japan and South Korea, differences that inform policy responses to hate speech. France, a western European state, experienced peace in the post-war era, whereas the North East Asian states faced the social conflicts generated when embroiled in proxy Cold War conflicts in Korea (1950–53) and Vietnam (1969–75). France, South Korea and Japan also have different locations within the global economy. The financial crashes in Asian in

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1997 and in the West in 2007 highlighted the different ways in which France, Japan and South Korea were integrated within the global economy. Hate speech incidents are local and virtual manifestations of the inequalities and discrimination that are rooted in much wider regional and indeed international conflicts. International law provides a resource which nation-states can draw upon to shape domestic hate speech legislation and to monitor the implementation and effectiveness of legal regulations.

International law France, Japan and South Korea are all members of the United Nations Commission on Human Rights (UNCHR) which became the United Nations Human Rights Council (UNHRC) in 2006. Japan joined the UNCHR in 1982. United Nations (UN) law on hate speech has a number of different sources, all of which are informed by the fundamental principles set out in the 1948 Universal Declaration of Human Rights (UDHR). The UDHR Articles relevant to hate speech legislation include Article 2 against discrimination and Article 19, the right to freedom of expression. In France rights are also protected under the 1953 European Convention on Human Rights (ECHR), Article 10 which protects freedom of expression and Article 14 which protects the rights against discrimination. Under ECHR Articles 10 and 14, the right to freedom of expression is qualified not absolute, so hate speech bans are feasible within a democracy. Indeed, for any constitution based on the rule of law, separation of powers necessitates that free speech rights are qualified not absolute (Bleich, 2011). Indeed for Bleich, whilst hate speech bans can exist under both democratic and authoritarian governments, the separation of powers that is a necessary part of democratic government ensures a balance between restrictions and rights to free speech (2011), a balance that is illustrated in the 2008 and 2015 French hate speech cases discussed previously. Early post-war human rights law was more reluctant to restrict rights to freedom of speech and emphasized the need to find a balance between rights to free speech and protection from discrimination. Priorities changing in the mid-1960s when two UN Conventions, which remain significant sources of international law for domestic hate speech legislation, prioritized rights of protection against discrimination. The 1965 United Nations International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) and the 1966 UN International Covenant in Civil and Political Rights (ICCPR) transformed anti-discrimination law. Japan (1971), South Korea (1978) and France (1995) all ratified the 1965 International Convention for the Elimination of all forms of Racial Discrimination (ICERD) which directly established a definition of hate speech and which encompassed racist language and racist associations. ICERD condemned all propaganda and all organizations which are based on ideas or theories of superiority of one race of group of persons of one color or ethnic origin, or

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which attempt to justify or promote racial hatred or discrimination in any form. (ICERD 1965 in Bleich, 2011, p. 22) Just as ECHR law deemed that Article 10 rights to freedom of speech did not supersede Article 14 rights of protection against discrimination, so the rights to freedom of speech under UDHRC and ICCPR were judged not to infringe ICERD anti-discrimination rights. The ICCPR [1966] Article 20, paragraph 2, prohibited “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” (United Nations, ICCPR, 2019). The combination of legislation produced by UDHRC, ICERD and ICCPR generated the “broad consensus that it is acceptable to constrain free speech” to counter racism (Bleich, 2011, p. 22). In UNDHR and ICCPR rights to freedoms of expression still outlaw the incitement of racial discrimination, hatred and violence, so are consistent with ICERD. Indeed, the UN deemed ICERD to be necessary in order to “prevent the political exploitation of ethnic difference” (UN ICERD, 1965). The Committee on the Elimination of Racial Discrimination (CERD) which monitors ICERD sets out the distinction between hate speech and free speech infringements and reiterates that UN Conventions protect freedom of speech as a qualified right which does not conflict with rights against discrimination. International agreements in UN, UNHCR, ECHR and EU law are sources for the creation and monitoring of domestic law to curb hate speech in Japan, South Korea and France, whether by constitution, statute or judgement (Keller & Stone Sweet, 2008). Once invoked, member states can differ in their interpretation and implementation of international law. States may implement agreements to differing degrees, or indeed not at all. ICERD and ICCPR both “require state parties to prohibit incitement to hatred, discrimination and violence on the grounds of race, ethnicity and nationality” (Lee, 2017, para 10). However, domestic law can interpret mandatory elements of international agreements differently. ICERD requires all domestic laws to curb hate speech to be used before international agreements are cited, with Article 14, ICERD providing guidance for domestic law application. Most recently, ICERD informed Japanese policy on foreign workers rights and the rights of Korean residents in Japan (Ministry of Foreign Affairs, 2017). International law also provides institutional frameworks that can monitor domestic legislation that is produced when international agreements are integrated into domestic law. For example, the CERD was included within the remit of the United Nations Human Rights, Office of the High Commissioner for Human Rights (UNHR, OHCHR, 2019), which exercised a greater mandate and responsibility for the Universal Periodic Review of each member states’ human rights obligations. International agreements also provide fora in which nation-states can contest the absolute stance of the United States on rights to freedom of speech as established under the First Amendment of the USA Constitution. CERD has challenged the US policy, for example a 2017 UN CERD panel urged the US to “‘unconditionally’ reject racist hate speech crimes” (CBS, 2017, para 1).

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International law agreements are relevant sources of law for the creation of domestic hate speech legislation. However, the universalism of international law, necessary to ensure the wide reach of the UN Conventions and other agreements, can obscure the ways in which political inequalities and power hierarchies within particular states can affect relations between governments and the ways in which the institutions of international law function. France, South Korea and Japan are all stable democracies, but each encounters different barriers in the formation, implementation and interpretation of international agreements. So, while universalism is fundamental to international law, global, regional and ethnic divisions shape how international law is made and implemented. Western nations have, for example, defined the terms of multilateral negotiations in international agreements. During negotiations for the 1918 Preamble to the Covenant of the League of Nations, a Japanese delegation proposal to inset a racial equality clause was accepted by a majority vote but then was later removed from the agenda by Woodrow Wilson (Goto-Jones, 2009; Kawamura, 1997). Today Japan makes a substantial contribution to UN funds on Human Rights, providing an annual US$ 1 million (Ministry of Foreign Affairs, Japan, 2014). In South Korea the contribution of UN institutions were problematized following the collapse of the 1945–46 United States trusteeship of Korea (Shin, 2004) and debates about the way in which national interests were reflected in the decision-making processes that shaped the United Nations’ policies both before and during the 1950–53 Korean War (Stairs, 1970). The universalism that shapes international law also blunts recognition of the distinct post-war historical contexts that shape hate speech in each state. The French era of post-war peace contrasts to the North East Asian experience of proxy Cold War conflicts in Korea (1950–53), which prompted Korean migration to Japan (Hirata & Waschauer, 2014; Salmon, 2014). Universalism can overlook the complexities of implementing UN legislation in regions, such as NorthEast Asia, in which substantial and ongoing conflicts between regional and global powers cause divisions. For example, the aftermath of the Korean War conflict permeates hate speech experiences and debates in Japan and South Korea today. Many of the Korean residents affected by hate speech in Japan were Korean War refugees, while the division of Korea into North and South after the war has produced a volatile border, fuelled by wider, global power hierarchies, still without a peaceful resolution. The close presence of authoritarian North Korea perhaps brings the state repression of rights to freedom of speech into sharper focus in South Korea, and perhaps Japan too, which in turn increases governments’ reluctance to use outright bans to curb hate speech (Lee, 2014). However, in contrast to Japan, where hate speech debates tend to emphasize cases of discrimination against zainichi, the hate speech debate within South Korea is perhaps wider and more open in its scope, possibly due to South Korea’s closer engagement with the struggle to protect human rights in North Korea. US exceptionalism also problematizes international law’s universalist perspective. In the United States there are no laws against hate speech; a policy based in

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the First Amendment constitutional right to free speech, which as Schauer notes, reiterates Mill’s (1859) idea that freedom of speech requires that all truths can be debated through rational argument (2012). The US does have extensive antidiscrimination laws, but the First Amendment forestalls any legislation directly against hate speech. The global predominance of the USA, which encompasses Europe and North East Asia, means the predominant ideas and values in United States governance do shape regional power hierarchies and conflicts, whilst simultaneously disengaging from international agreements on hate speech legislation. The US stance forms the overarching background to the hate speech debate (Schauer, 2012), so while hate speech incidents in France, South Korea and Japan emerge from domestic social and economic inequalities, US foreign policy informs the global context in which domestic and regional conflicts take place. Indeed, some commentators claim initiatives to curb hate speech in the region should acknowledge the United States, rather than Japan, as a source of hate speech (O’Dwyer, 2017). In short, international agreements, and particularly the UN ICERD and ICCPR Conventions, are legal resources which can shape domestic legislation, whether through constitutional law, statute or legal interpretation. The 1960s UN Conventions highlighted the significance of measures against hate speech and discrimination in the protection of human rights. Democratic processes within and between states were crucial to the development of international law to combat hate speech and discrimination between 1945–75. Such processes were then undermined in the shift towards neoliberalism in the 1970s. In short, the period 1945–75 suggests that the implementation of international law requires democratic processes to function in both international and domestic spheres, a process perhaps curtailed as neoliberal globalization transformed the political economies of France, Japan and South Korea in the 1980s.

Neoliberal globalization: social inequality, dwindling democracy and the rise of hate speech ICERD and ICCPR, the international agreements in the 1960s that highlighted the significance of hate speech and outlawed the membership of racist associations, were legal conventions that flourished in the multilateral, democratic culture of the post-war era. Post 1945 multilateral agreements foregrounded equality and democracy and used Keynesian investment programmes to bolster demand led economic growth. The hate speech that existed had to contend with the emphasis upon egalitarian values. The emergence of neoliberal globalization in the late 1970s restructured national economies, increased the global integration of production and liberalized finance capital (Harvey, 2005; Bellos, 2013). The extent of the transformation wrought by neoliberalism eroded the influence of the egalitarian values that had existed before the emergence of the global economy. Social and economic inequalities within and between nation states increased and, coupled with the rise of individualism, weakened campaigns against discrimination. The financial crashes in Asia in 1997 and in Europe in 2007 exacerbated

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neoliberal inequalities and sparked the ongoing increase in hate speech and discrimination against marginalized populations. Neoliberalism places politics in the service of the economy (Harvey, 2005), shifting priorities away from the democratic processes needed to create and implement international agreements. The economic globalization that emerges undermines the autonomy of the nation state, weakens the democratic processes upon which state legitimacy rests and increases social inequalities within and between nation states. The hate speech debates of 2013–15 can be set within the social and economic transformations wrought by globalization within France, South Korea and Japan. In France, South Korea and Japan the global integration of production through the expansion of the transnational corporation (TNC), which constitutes the “paradigmatic organization of production” (Bellos, 2013, p. 271) in the global economy, undermines the autonomy of nation-state powers to shape production. The spate of hate speech incidents in the 2010s occurred at a time when the mounting inequalities produced by neoliberalism since the 1970s had been pushed into sharp relief by the 1997 and 2007 financial crashes. US globalization went unchallenged in the 1990s and resulted in global shifts in labour and capital that transformed the societies and the economies of France, South Korea and Japan. Capital moved into developing economies and labour migrated into developed economies. Neoliberal policy aimed to solve the “crisis of overproduction” (Bellos, 2013, p. 5) through restructuring, global integration and financialization, measures intended to stimulate de-industrialized western economies by opening up new consumer markets for foreign imports and investment. The policy shift had a profound impact upon countries like South Korea and Japan, where growth had been based upon successful statefunded export economies. Japan had experienced rapid post-war economic growth and in South Korea state-led investment for export meant GDP rose from US$8 billion in 1970 to US$93 billion in 1985 (Salmon, 2014, p. 33). The state-led investment for export that shielded Japan and South Korea from the global economy ended when US-led financial deregulation (Harvey, 2005) opened up South Korea and Japan to foreign imports and investors. When the IMF and the US Treasury recommended capital liberalization in the 1980s, foreign investors invested heavily in property and the stock market, prompting an over-investment bubble which caused a price slump and led to the 1997 Asian financial crash. IMF bailouts for foreign speculators ended the “East Asian Miracle” and pushed the region’s economy into recession (Bellos, 2013, p. 91). In South Korea the recession resulted in the collapse of many chaebol companies. The structural adjustment of the South Korean economy, which were conditions for the IMF’s US$58 billion loan to South Korea, required the reform of financial and labour markets (Rodier, 2014). During roughly the same period, 1994–2006, Japan’s share of global trade fell “from 18 percent to 10 percent” (Hirata & Waschauer, 2014, p. 27). However, state-led investment continued after the crash and perhaps shaped South Korea’s recovery (Kalinowski, 2008). South Korea and Japan recovered from the 1997 crash by

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increasing US dollar currency reserves, which offered protection in the 2007–8 financial crash, whilst the region’s “integration into China’s economy” meant that China’s 2009 $585 billion stimulus offset the impact of the slump in US demand on Korea and Japan’s export economy (Bellos, 2013, p. 16). In North East Asia the 1997 financial crash illustrated the pitfalls of neoliberal globalization and in particular the IMF’s financialization policy. In North East Asian states, including South Korea and Japan, the role of state investment in stimulating the economy persists, and indeed the “non-liberalization of finance” (Bellos, 2013, p. 93) in China provides a buffer for the region against the widespread global deregulation of finance. The financial crashes 1997 and 2007 exacerbated social and economic inequalities in South Korea, Japan and France which, I suggest, in part shaped the surge in hate speech in 2013–15. The partial and short term economic recovery which was evident by the start of the 2010s was tempered by a realization that long term solutions required structural changes; in particular, the economies in all three states required an increased level of immigration in order to resolve shortages in the labour supply. Furthermore, in order to attract foreign labour, all three states were becoming aware that workers coming from overseas should be fully integrated and granted citizenship rights if they were expected to remain. In Japan, “Abenomics” had ended Japan’s deflationary slump by 2013 (Hirata & Waschauer, 2014, p. 55) through a mixture of an end to monetary restrictions coupled with Keynesian fiscal stimulus, structural reform and infrastructure investment. However, a supply of labour to redress the deeper, demographic, structural imbalances in the labour market is still required. The nationalism that defines the politics of Abenomics hampers relations with the nearby states that are the closest source of labour. In short, two contradictory factors exist that can foster the emergence of hate speech: the economic imperatives of immigration and the political imperatives of nationalism. Japan’s demographic imbalance is acute. Falling birthrates and an ageing population mean that a general demand for labour spans “manufacturing, textiles, agriculture and the fishing industry” (Hirata & Waschauer, 2014, p. 115). However, opposition to “large-scale immigration” (Hirata & Waschauer, 2014, p. 107) is expressed in a reluctance to grant migrants full citizenship rights and a focus upon short-term labour supply programmes, such as the 1993 Technical Internship Program. Despite claims that Japan’s economy requires large scale immigration (Hirata & Waschauer, 2014; Hoffman, 2012), the Abe government appears to resist businesses’ demands for immigration, perhaps in response to popular opposition. Indeed, nationalism may exacerbate Abenomics’ immigration policy gap. The historical revisionism of Abe’s nationalism seemingly goes beyond “normalist” demands to overturn Article 9 of the US-Japan Defence Treaty (Hirata & Waschauer, 2014, p. 132) by seeking to re-frame Japan’s 1930–45 Pacific War role as “self-defence” (2014, p. 133), a sentiment perhaps expressed by the President’s visits to the Yasukuni Shrine in December 2013. Anti-Korean discrimination in Japan centres upon overt protests against zainichi and includes those Koreans who are second generation migrants to Japan.

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Many anti-zainichi protests have occurred in Shin-Okubo, Tokyo’s Korea Town. Anti zainichi hate speech incidents are expression of power hierarchies that are rooted in inequalities and marginalization that have been experienced by Koreans resident in Japan. Two million Koreans settled in Japan between 1910–45 and sought to sustain rights to a cultural and historical identity and a language. Contemporary hate speech incidents revive the anti-Korean discrimination of the colonial era. Gestures perceived as anti-Korean, such as the President’s visits to the Yasukuni Shrine, can appear to legitimize the anti-Korean discrimination directed at ethnic enclaves in Japan. Hate speech protests against the inhabitants of the Korean enclaves in Japan also threaten the Korean cultural identities and values that the enclaves sustain, and the maintenance of family ties between Koreans who are otherwise split by the divide between South and North Korea. While South Korea shares Japan’s demographic imbalances, in South Korea the labour shortage in is being addressed in different ways to Japan. In South Korea more women are entering the workforce and more foreign workers, particularly Chinese migrant workers, are being recruited to work in the agricultural sector. NHRCK initiatives (2013) that exist to support Chinese agricultural migrant workers and their families living in Korea are supportive of long-term immigration by guarding against the discrimination that might confront migrants to South Korea. In France, Japan and South Korea, falling populations require the labour supply to be increased through long-term immigration. In France and Japan, the inequalities produced by a colonial history can become expressed through anti-immigrant hate speech and discrimination. The emergence of neoliberal globalization in the 1980s, and the crashes of the 1990s, have exacerbated social and economic inequalities that sparked hate speech incidents debates during the initial short term recovery phase in 2013–15. In short, hate speech in Japan, South Korea and France occurred at the point at which the only long-term solution to the labour shortages was acknowledged to be substantial immigration of workers from overseas.

Democracy, the public sphere and public discourse – an antidote to hate speech? While the hate speech incidents in 2013–15 emerged from the immediate aftermath of the economic and political turmoil produced by the 1997 and 2007 financial crises, the rise of hate speech and debates about hate speech policy and legislation are rooted in the longer process by which neoliberalism has fundamentally transformed the sphere of public discourse. Neoliberal globalization erodes the democratic sphere of public discourse in three ways. First, the autonomy of the nation state’s control over domestic policy is weakened by the transnational corporation, the “paradigmatic organization of production in the age of globalization” (Bellos, 2013, p. 271) and the capacity of foreign speculation to destroy the value of national currencies. The internet, the technology that underpins the capital flows of global financialization, is dominated by companies that

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exist outside the regulatory control of nation-states. The “platform capitalism” of the Internet sees data as a resource to be “extracted, refined and used in a variety of ways” and generates its own international marketplaces (Srnicek, 2017, p. 40). Second the power of nation states to determine economic and social policy within their borders dwindles and third, populist politics thrive as the state’s democratic deficit increases. The dwindling of democratic culture within the nation state can undermine the implementation of international law agreements, a process which is dependent upon dialogue between the distinct legal systems of each nation state. The UN Conventions crucial to hate speech legislation require the co-operation of democratic states to make legislation, signatories and sanctions. Japan, South Korea and France are all democracies within which the global economy has diminished the scope of public discourse. As the sphere within which informed debate takes place is depleted, hate speech flourishes in the void. The policies that will successfully curb hate speech in the long term will be those which reverse the democratic deficit and build up a sphere of public discourse required for rational debate. Hate speech alerts us to the extent to which this sphere of rational, public debate has already been severely depleted. We should anticipate the next phase, the shift from hate speech to the hate crime that the language of hate speech emboldens. Neoliberal globalization fuels a democratic deficit that both intensifies hate speech incidents and undermines the national and international democratic spheres that sustain reasoned public discourse. Hate speech thrives in the depleted public spheres that emerge in democracies under neoliberalism and are characterized by privatized communications and the “platform capitalism” of the internet (Castells, 1998; Harvey, 2005; Srnicek, 2017). Hate speech is best analyzed within its social and economic context because, like hate crime, hate speech is “a social construct with no self evident definition” (Jacobs & Potter, 1998 in Chakraborti & Garland, 2009, p. 4). The word “hate” might distract from the issue of prejudice, but does highlight the emotional content and expression of prejudice, which is often apparent in the severity and fervour of hate speech. For Sheffield, the violence hate speech can motivate is bolstered by belief systems which (attempt to) legitimate such violence . . . it reveals that the personal is political; that such violence is not a series of isolated incidents but rather the consequence of a political culture which allocates rights, privileges and prestige according to biological or social characteristics. (Sheffield, 1995 in Chakraborti & Garland, 2009, p. 5) Indeed Sheffield suggest that it is an absence of rights that fuels hate violence, which is characterized as an “expression of power against those without . . . rights” (Sheffield, 1995 in Chakraborti & Garland, 2009, p. 5). Broader patterns of social and economic inequality, coupled with the lack of a sphere of public discourse within which to articulate grievances, can produce the conditions for hate speech. For Perry, hate speech is “historically and culturally contingent” . . .

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and “the experience [of hate speech] needs to be seen as a dynamic social process involving context, structure and agency” (Perry, 2001 in Chakraborti & Garland, 2009, p. 6) which is often directed towards those “already stigmatized and marginalized groups” (Perry, 2001, p. 10 in Chakraborti & Garland, 2009, p. 5). By setting the analyzing of hate speech and hate crime within the context of the layers of economic, political and social inequality in which they occur, the definition of hate speech and its dynamics are clarified. The history and political economy of Japan, South Korea and France shape the issues that are expressed in hate speech incidents and inform when, where and how hate speech incidents occur. An emphasis upon the context within which hate speech occurs also shifts the debate beyond the idea that hate speech policy is a matter of finding the right balance between regulation and the right to freedom of speech. Bleich, an advocate of such “balance,” contends that in the balance between freedom and racism, a shift has occurred towards “curbing racism and away from preserving freedom since 1945” (Bleich, 2011, p. 6). However, the emphasis upon balance conflates several layers of analysis. As Heinze (2016) illustrates, “balance” suggests that the rights and freedoms of the speaker of hate speech be “balanced” with the marginalized and devalued interest accorded to the hate speech target. The idea of balances rests upon the assumption of a level playing field for all parties involved in the exchange, when instead it is important to acknowledge that hate speech incidents take place within pre-existing social hierarchies riven by inequality. Heinze’s concept of the public discourse (2016) can move the hate speech debate beyond the idea of balance. For example, Article 19, UNDR, guarantees the rights of freedom of opinion and expression and the hate speech speaker might assert rights to a freedom of speech. However, as Heinze (2016) suggests, such claims by a speaker illustrate the way in which most hate speech debates are restricted to the question of competing rights to free speech. This restricted view of the context in which hate speech occurs overlooks the experience of the vulnerable groups who are the victims of hate speech. Approaches to hate speech that advocate “balance” are not balancing rights against rights, but rather set the speakers’ rights against the victims’ interests, when balance requires that the speakers’ interests be set against the victims’ interest. Heinze approach is particularly useful because it identifies the dynamics of hate speech by pinpointing the way hate speech works as the expression of a power hierarchy over a marginalized social group. For Heinze the scope of public discourse must be extended to include both the rights and interests of both the parties or “public discourse . . . fails to supply a norm constitutive of, and thereby legitimating, value-pluralist balancing processes” (Heinze, 2016, p. 63). The idea of “balance” conflates rights and interests, a conflation that then permits rights to freedom of speech to be asserted in ways that privilege dominant interests over the interests of the marginalized. Balance, however, remains relevant to the emerging process of the regulation of the internet. The regulation of the internet is a crucial element in hate speech policy. Much hate speech now occurs online and the regulation of the internet is central to the revival of a public sphere of discourse. Globalization has often appeared to place the regulation of the internet beyond the reach of the nation

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state; however, recent European law judgements now judge that commercial news portals with platforms for user comments have “duties and responsibilities” in accordance with Article 10, s. 2 of the European Convention on Human Rights, “where users disseminate hate speech or comments to direct incitement to violence” (ECHR, 2017) . The era of neoliberal globalization within which hate speech came to thrive is in decline. Some claim “de-globalization” (Bellos, 2013, p. 249) might offer an alternative direction for economic policy, especially since environmental crisis has made Keynesian demand-led development longer sustainable. Indeed, the environmental movements in France, South Korea and Japan provide examples of spheres of democratic debate that counter global divisions and hate speech. If the intensification of hate speech in the 2010s can be attributed to the economic crises and the shrinking of the sphere of public discourse under neoliberalism, then perhaps the anti-hate speech policies that will succeed in curbing hate speech will be those policies that also reduce economic and social inequalities whilst extending the sphere of public discourse.

Conclusion The hate speech debates that erupted in Japan, South Korea and France between 2013–15 emerged at the point at which the short-term recovery from the 2007–8 financial crash had been reached. The long-term solutions to the underlying structural issues of demographic imbalance are still to be implemented. The necessity for long-term immigration in order to resolve the labour shortage is now being acknowledged, but as yet meets with popular opposition in all three states. Policies to curb hate speech and discrimination are now more necessary than ever before. Since the late 1970s, neoliberal globalization has transformed economic, social and political life. Hate speech perhaps thrives most at the point at which political life has been transformed by the erosion of the public sphere in which reasoned debate can occur. Depleted democratic processes within nation states can in turn undermine the workings of international law, which rests upon the participation of democratic states to ratify conventions and implement domestic legislation. Hate speech restrictions are required to protect the interests of the marginalized and vulnerable, whilst measures to sustain the public sphere of discourse can counter both hate speech and authoritarianism.

Notes 1 [2015] Case No. 25239/13 ECHR. 2 [2008] Case No. 15948/03 ECHR.

Bibliography Asia-Pacific Forum of National Human Rights Institutions. (2013). South Korea: Outreach Tour Targets Migrant Workers [online]. Sydney: Asia Pacific Forum. Retrieved February 28, 2019 from www.asiapacificforum.net.

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Asia-Pacific Human Rights Information Centre. (2017). Hate Speech in South Korea. [online]. March, Vol 87. Osaka: Asian Pacific Human Rights Information Centre. Retrieved February 28, 2019 from www.hurights.or.jp. Bellos, W. (2013). Capitalism’s Last Stand? London: Zed Books. Bleich, E. (2011). The Freedom to Be Racist? Oxford: Oxford University Press. Brasor, P. (2016). Japan’s Resident Koreans endure a climate of hate. The Japan Times, May 7. Retrieved February 28, 2019 from www.japantimes.co.jp. Castells, M. (1998). End of Millennium: The Information Age. Malden, MA: Blackwell. CBSNews. (2017). CBS. [online]. 23 August. U.N. Panel urges U.S. to “unconditionally” reject racist hate speech crimes. New York: CBS News. Retrieved February 28, 2019 from www.cbsnews.com. Chakraborti, N., & Garland, J. (2009). Hate Crime: Impact, Causes and Responses. London: Sage. Christafis, A. (2015). France launches major anti-racism and hate speech campaign. The Guardian, April 17. Retrieved February 28, 2019 from www.theguardian.com. Council of Europe. (2009). Manual on Hate Speech [online]. Strasbourg: Council of Europe Publishing. Retrieved February 28, 2019 from www.coe.int. Equality and Human Rights Commission. (2017). What is the European Convention on Human Rights? Manchester: EHRC. Retrieved February 28, 2019 from www.equalityhumanrights.com. European Commission. (2015). General Policy Recommendation No. 15, of the European Commission Against Racism and Intolerance, on Combating Hate Speech [online]. Strasbourg: Council of Europe. Retrieved February 28, 2019 from www.coe.int. European Court of Human Rights. (2019). Hate Speech Factsheet [online]. Strasbourg: ECHR. Retrieved February 28, 2019 from www.echr.coe.int. Goto-Jones, C. (2009). Modern Japan. Oxford: Oxford University Press. Harvey, D. (2005). A Brief History of Neoliberalism. Oxford: Oxford University Press. Heinze, E. (2016). Hate Speech and Democratic Citizenship. Oxford: Oxford University Press. Herz, M., & Molnar, P. (eds.). (2012). The Context of Hate Speech: Rethinking Regulation and Responses. Cambridge: Cambridge University Press. Hirata, K., & Warschauer, M. (2014). Japan: The Paradox of Harmony. New Haven: Yale University Press. Hoffman, M. (2012). Only immigrants can save Japan. Japan Times, October 21. Retrieved February 28, 2019 from www.japantimes.co.jp. Jacobs, J., & Potter, K. (1998). Hate Crimes: Criminal Law and Identity Politics. Oxford: Oxford University Press. Japan. Japanese Diet. (2016). Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior Against Persons originating from Outside Japan. Tokyo: Japanese Diet. Japan. Ministry of Foreign Affairs, Human Rights. Retrieved from www.mofa.go.jp. Japan. Ministry of Foreign Affairs. (2014). UN Activities on Human Rights [online]. Tokyo: Ministry of Foreign Affairs. Retrieved March 4, 2019 from www.mofa.go.jp. Japan. Ministry of Foreign Affairs. (2017, July). Tenth and Eleventh Combined Periodic Report by the Government of Japan under Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination [online]. Tokyo: Ministry of Foreign Affairs. Retrieved February 28, 2019 from www.mofa.go.jp. Japan. National Institute of Population and Social Security Research [Report on Japan’s Estimated Future Population]. (2012). [online]. Tokyo: National Institute of Population and Social Security Research. Retrieved February 28, 2019 from www.ipss.go.jp.

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Kalinowski, T. (2008). Korea’s recovery since the 1997/1998 financial crisis: The last stage of the developmental state. New Political Economy, 13(4). Kawamura, M. (1997). Wilsonian idealism and Japanese claims at the Paris Peace Conference. Pacific Historical Review, 66(4). Keller, H., & Stone Sweet, A. (2008). A Europe of Rights: The Impact of the ECHR on National Legal Systems. Oxford: Oxford University Press. Korea. National Human Rights Commission. (2017). NHRCK Conducted Research on Hate Speech and Regulation. Seoul: National Human Rights Commission. Retrieved February 28, 2019 from www.human rights.go.kr. Korea. Seoul National University Human Rights Centre. Retrieved February 28, 2019 from www.hrc.snu.ac.kr. Lee, C. (2014). Korea Struggles to Enact hate speech laws. The Korea Herald, 28 December. Retrieved February 28, 2019 from www.koreaherald.com. Lee, J.-Y. (2017). Hate Speech in South Korea. Focus, March, Volume 87. Asia-Pacific Human Rights Information Centre. Retrieved February 28, 2019 from www.hurights. or.jp. Lefebvre, G. (2009). The French Revolution. London: Routledge. McCurry, J. (2014). Japanese “hate speech” debate abandoned as insults fly. The Guardian, October 21. Retrieved February 28, 2019 from www.theguardian.com. Mill, J. S. (1859). On Liberty. London: Longman, Roberts & Green. O’Dwyer, S. (2017). Japan does not need to criminalise hate speech. The Japan Times, September 20. Retrieved February 28, 2019 from www.japantimes.co.jp. Parekh, B. (2012). Is there a case for banning hate speech? In M. Herz & P. Molnar (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses. Cambridge: Cambridge University Press. Perry, B. (2001). In the Name of Hate: Understanding Hate Crimes. London: Routledge. Rodier, L. (2014). Assessing the role of the IMF in South Korea during the Asian Financial Crisis. Journal of Economics and Development Studies, 2(2). Salmon, A. (2014). Modern Korea. London: John Murray. Schauer, F. (2012). Social epistemology, Holocaust denial and the Post-Millian Calculus. In M. Herz & P. Molnar (eds.) The Context of Hate Speech: Rethinking Regulation and Responses. Cambridge: Cambridge University Press. Sheffield, C. (1995). Hate violence. In P. Rothenberg (ed.) Race, Class and Gender in the United States. New York: St Martin’s Press. Shin, B. (2004). The decision process of the trusteeship in Korea, 1945–1946: Focusing on the change of U.S. Ideas. Pacific Focus, Inha Journal of International Studies, 19(1). Srnicek, N. (2017). Platform Capitalism. London: Polity Press. Stairs, D. (1970). The United Nations and the politics of the Korean War. International Journal, 25(2). Stille, A. (2015). Why French law treats Dieudonne and Charlie Hebdo differently. The New Yorker, January 15. United Nations. (2015). Universal Declaration of Human Rights [1948]. Geneva: United Nations. Retrieved February 28, 2019 from www.un.org. United Nations Human Rights, Office of the High Commissioner. (2008). Convention on the Rights of Persons with Disabilities, Advocacy Toolkit, Professional Training Series, No. 15. [online]. Geneva: United Nations. Retrieved February 28, 2019 from www. ohchr.org. United Nations Human Rights, Office of the High Commissioner. (2019a). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic

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Minorities [1992]. Geneva: United Nations. Retrieved February 28, 2019 from www. ohchr/EN/Issue/Minorities. United Nations Human Rights, Office of the High Commissioner. (2019b). International Covenant on Civil and Political Rights [1966]. Geneva: United Nations. Retrieved February 28, 2019 from www.ohchr.org. United Nations Human Rights, Office of the High Commissioner. (2019c). International Convention on the Elimination of All Forms of Racial Discrimination [1965]. Geneva: United Nations. Retrieved February 28, 2019 from www.ohchr.org.

8

When hate becomes illegal Legislation processes of the anti-hate speech law in Japan Naoto Higuchi

Introduction Hate speech was once an unfamiliar term in Japan, with the exception of some legal experts. This is not to say that Japan never saw hate speech; on the contrary, hate speech against the burakumin minority and Korean residents has been widespread in post-war Japan. However, it was not regarded as “hate speech”: the term first appeared in major newspapers such as Asahi Shimbun in 2012. In fact, it was not regarded as a serious problem requiring countermeasures, although burakumin associations condemned discriminatory remarks when they encountered them. It was the rise of nativist groups since 2009 that transformed this situation. The largest and most notorious among them is Zaitokukai (short for Zainichi token wo yurusanai shimin no kai, or civic group against special privileges for Zainichi Koreans), which has organized hate-speech demonstrations nationwide as well as an attack on a Korean school in Kyoto and the Japan Teacher Union in Tokushima (Higuchi, 2016). Anti-racist groups have also organized, and clashes between nativists and anti-racists focussed nationwide attention to the extent that “hate speech”’ became one of the top ten words of 2013. Three years later, on May 24, 2016, Japan’s Diet passed the Hate Speech Elimination Act (hereafter Anti-Hate Speech Law), which is the country’s first anti-racism law. The effectiveness of this law is limited, because it neither prohibits hate speech nor punishes it (Martin, 2018). Nevertheless, it is still remarkable that the law was enacted in the Japanese legal and political system. The Japanese system of law is strongly influenced by that of the United States, which is in favour of the constitutional right to freedom of expression. This is why Japan registered a reservation to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) when it acceded to the convention in 1995 (Martin, 2018). The overwhelming majority of Japanese constitutional scholars, who regard freedom of expression as a rock-ribbed law, have been negative about outlawing or penalizing hate speech. In addition, long-term conservative rule has made it difficult to enact any kind of anti-hate speech legislation in Japan. The ruling Liberal Democratic Party (LDP) has never established national human rights institutions asserting that they could violate the principle of fundamental freedom. The LDP never openly

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opposed any measures against the hate speech of these nativist groups, but it actually adopted a wait-and-see strategy, expecting a decline in public interest (cf. Downs, 1972). Nevertheless, the current ruling coalition of the LDP and the Komei Party finally submitted the bill and the Diet nearly unanimously passed the Act just three years after the phrase “hate speech” was introduced to the Diet. Why was the Anti-Hate Speech Act enacted so quickly? Given the disrepute of Zaitokukai, it seems plausible that norm cascade occurred to reach consensus across parties (Finnemore & Sikkink, 1998). In fact, the largest opposition party, the Democratic Party of Japan (DPJ), tried to use the issue as ammunition to attack the LDP in the Upper House election campaign of July 2016. By most definitions, the LDP seemed to reluctantly accept the norm presented by the opposition to avoid criticism. It seems natural to focus on norms, therefore, especially because we are talking about an anti-discrimination law based on human rights. However, my following analysis will show that the Anti-Hate Speech Act was enacted without norm cascade. Thus, my research question is twofold: 1) what made the Diet pass the law, and 2) what has changed with the enactment of the law? These questions are important because it is the Abe cabinet, which is known to be rightist and hostile to human rights issues, that passed the Anti-Hate Speech Act. In this chapter, I will address the first question, focussing on the role of different actors in the policy process. I then turn to the second question, examining the results of the lack of norm cascade.

Theory Enlarged policy window model Kingdon’s canonical work on the “policy window” model examined why actors around the government pay attention to some issues in a certain period (Kingdon, 1995, p. 1). Based on the premise that streams of problems, policies and politics in government are largely independent of each other (Kingdon, 1995, pp. 86– 87),1 he argues that the policy window opens when three flows join together.2 A pressing problem demands attention and a policy proposal is coupled to the problem as its solution. If a problem coincides with events in the political stream, such as a change in government, it produces a policy output (Kingdon, 1995, p. 201). Moreover, it should be noted that opportunities do not come by frequently, and they pass within a relatively short period. Policies are not realized unless prompt actions are taken when the three streams join to open windows. In other words, streams of problems, policies and politics do not join automatically towards policies: they need to be deliberately directed to specific goals. The model suggests, therefore, that public attention is not sufficient to achieve policy objectives. In this sense, policy entrepreneurs, a term referring to people seeking to initiate dynamic policy change (Mintrom, 1997, p. 739), can play a crucial role in policy processes.

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Table 8.1 Stages of policy processes towards the Anti-Hate Speech Act Stages

Examples

Non-politicized social problems

Media coverage as social problems, emergence of social movements Politicization Agenda setting Becoming a subject of parliamentary questioning Policy formation Submission Submission of a bill to the Diet Deliberative debates Specification of legislative alternatives Enactment Legislative enactment

Source: Burstein, Einwohner et al., 1995, p. 284; Burstein, 2014; King et al., 2007; Kingdon, 1995

With all its usefulness to analyze policy processes, Kingdon’s model should be modified in two important ways to answer our questions. First, Kingdon focuses on the agenda setting stage because he intended to shed light on this missing piece of the puzzle in political science. However, we need to examine later stages of policy processes to answer our research question. We need to add several stages of policy formation as shown in Table 8.1. Although Kingdon does not consider the conditions preceding agenda setting, some issues become the focus of attention before they are politicized. In fact, many regarded Zaitokukai as problematic when it directly attacked an undocumented migrant family and a Korean elementary school in 2009. But the issue of Zaitokukai was not politicized until Yoshifu Arita (an Upper House member of the DPJ) first paid attention to it in 2013. Following submission of a bill come the subsequent stages in Table 8.1, because they are necessary to analyze the role of party competition on policy formulation. Second, as his model is based on the US presidential system, Kingdon tends to ignore the role of political parties. However, parties are key players in policy processes under parliamentary systems. Party competition over a certain issue can generate a political field that brings about policy punctuation (Carter & Jacobs, 2014). Political parties can act either as veto players to prevent legislation or as issue entrepreneurs to promote policy processes (Walgrave & Varone, 2008). In the last two decades, the LDP has served as the veto player against human rights-related legislation: it has been resisting the introduction of the option of married couples keeping their respective surnames, the granting of voting rights to foreigners and the establishment of independent human rights bodies, to name a few. Different actors in stages of policy processes Agenda setting According to Kingdon (1995), it is problems and politics that facilitate agenda setting. In the United States, social movements constructed the problem of hate crimes to influence politics, thereby contributing to agenda setting (Jennes, 2007).3 In most cases, policy entrepreneurs are composed of a variety of actors who join the policy process both simultaneously and at different

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stages of it with different skills, knowledge and positions towards policy change (Herweg et al., 2015, p. 445). There are various kinds of policy entrepreneurs inside and outside the government. The power of insiders is determined by the strength of their connection to the government (Best, 1990). Insiders actively participate in the stages where policy alternatives are indicated, rather than the agenda setting stages (Kingdon, 1995, pp. 68–69). The success of outsiders’ engagement depends on press coverage, and they can reign in the initial processes from the construction of social problems to the agenda setting stage. In contrast, intra-governmental factors become more important in later stages, because state institutions determine how particular issues are dealt with. In the case of the Anti-Hate Speech Act, parties are more important than the cabinet because the opposition DPJ led the policy process. In addition, the fact that the issue of hate speech was owned by opposition parties made it more difficult to devise new legislation. Therefore, I have delineated three stages (submission, deliberative debates and enactment) to examine how policy entrepreneurs overcame barriers. Policy formation and party competition The influence of peripheral actors declines as policy entrepreneurs progress to the later stage of the policy process, which is characterized by more stringent rules than previous stages (Soule & King, 2006). In the case of the Anti-Hate Speech Act, the role of parties became more and more crucial as the policy process developed. To put it differently, it is useful to distinguish between logics of constituency representation and electoral competition for political parties (Kitschelt, 1989). The logics of party competition were more important than the cabinet, because the Anti-Hate Speech Act was originally laid on the table as private member’s bills of both the opposition and ruling parties. The notion of issue competition is also important for understanding the legislation process of the Anti-Hate Speech Act. This has mainly been used for research into electoral campaigns (Petrocik et al., 2004), but it is also useful to study policy processes. It emphasizes that “parties compete by trying to draw attention to issues they find advantageous rather than by assuming diverging positions on predetermined issues” (Green-Pedersen & Mortensen, 2010, p. 258; cf. Odmalm, 2011). As a corollary, parties tend to “own” their favourable issues to use for electoral campaigns and policy debates over a single issue (Jerit, 2008, p. 4; Petrocik, 1996). Parties strive to set the agenda and draw attention to their issues by emphasizing particular policy problems and solutions they offer (Green-Pedersen & Krogstrup, 2008; Green-Pedersen & Mortensen, 2010). According to the theory of issue competition, the initial response of ruling parties to agenda setting by the opposition would be silence. Their engagement makes little sense because commitment to issues owned by their opponents would give more airtime to the other side’s agenda (Jerit, 2008). However, opposition parties sometimes succeed in taking up an issue that ruling parties like to ignore, getting them onto the stage (Green-Pedersen & Mortensen, 2010). In this case, ruling parties can choose to imitate policies of their opponents to avoid criticism (Vliegenthart et al., 2011).

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Data Because a variety of actors participated in the policy process to pass the AntiHate Speech Act, none of them alone can provide the full picture of it. In addition, each actor – the general public, the Diet, the judiciary, foreign governments, related ministries and advocates – played different roles in each stage of the policy process. To understand the multifaceted aspects of the issue, I used a combination of the following data: 1) interviews with six MPs and four civic organizations conducted from March 2016 to November 2017, 2) counting the number of parliamentary questions and interpellations related to hate speech from January 2013 to June 2016, 3) the results of opinion polls of MPs conducted by Asahi Shimbun and the University of Tokyo4 and 4) counting the number of articles in the Asahi and Yomiuri newspapers using the phrase “hate speech” and the actors who appeared in them. This aimed to identify the interests and competing opinions in the public arena (Hilgartner & Bosk, 1988).

Different actors at different stages of the policy process Pre-politicization stage, 2009–April 2013 Zaitokukai started their activity in January 2007, but it wasn’t until two years later when the group became widely known for demonstrating against an irregular Filipino migrant family who applied for Special Permission to Stay in Japan. Membership of the group increased rapidly from this time, and Zaitokukai came to be acknowledged as the representative organization of the nativist movement (Higuchi, 2016). Figure 8.1 shows how often Zaitokukai and hate speech were searched on Google. While the frequency of Zaitokukai rose since 2009, interest in hate speech heightened four years later. The same is true for Figure 8.2: it was

200 180 160 140 120 100 80 60 40 20 0

hate speech Zaitokukai

2008

2009

2010

2011

2012

2013

2014

2015

Figure 8.1 Frequency of searching for Zaitokukai and hate speech Source: Search results of Google Trends

2016

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300

articles

200 150

30 parliamentary debates hate speech on newspapers Zaitokukai on newspapers

25 20 15

100

10

50

5

0

0

parliamentary debates

250

117

Figure 8.2 Frequency of hate speech appearing in newspapers and parliamentary debates Source: Data (2) and (4)

not until 2013 that “hate speech” appeared in newspapers but hate speech has been more frequently referenced than Zaitokukai since then. The meaning of this change is twofold. First, the notion of hate speech rapidly diffused to describe the behaviour of Zaitokukai. However, the catalyst for politicization was rather coincidental, as the “garbage can” model suggests (Cohen et al., 1972). On February 9, 2013, the first massive clash between nativists and anti-racists occurred in a Korean town in Tokyo. Anti-racist protesters recorded the demonstration and uploaded it to YouTube so that many could understand how poorly behaved nativists were and how they were surrounded by anti-racist protesters. Korean novelist Miri Yu watched live links to the demonstration and posted to her Twitter: “I will neither forget nor tolerate that they, coram populo, set up placards saying, ‘good Koreans? Bad Koreans? Kill both’.” Her tweet caught the attention of MP Yoshifu Arita.5 He was surprised to read it and organized a meeting at the Diet member’s building on March 14, 2013, which was the first time that the phrase “hate speech” appeared in the public sphere. When a lawyer and a jurist referred to hate speech on the panel, the media introduced it as neologism (e.g. Asahi Shimbun, March 16, 2013). Since then, hate speech became the focal issue surrounding Zaitokukai. Secondly, the term hate speech proliferated beyond the policy domain, boosting it to one of the top ten words in 2013. It was counter actions against Zaitokukai that became the driving force to spread the use of the term hate speech. Counter actions began rather quietly in February 2013, but they soon spread nationwide, including protests against Zaitokukai. Confrontation between the

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two parties had news value, which resulted in constant media coverage about hate speech. In fact, Table 8.2 indicates that anti-racists were the most frequently referred to in newspaper articles on this topic. Although the word Diet comes in second, anti-racists were by far the most constantly covered, contributing to a sustained interest by the general public. Thirdly, Arita served as the most important policy entrepreneur to enact the Anti-Hate Speech Act during this time. His light-footed activities ranged from participating in anti-racist counter mobilization and organizing meetings to interpellating at the Committee of Judicial Affairs of the Upper House. In this sense he was an insider activist (Banaszak, 2010, p. 12), but he was not representing his constituency. Because he was a well-known journalist and thus independent of an organizational support base for re-election, he could afford to commit himself to the issue of hate speech. The initial stage of politicization, May 2013–July 2015 Table 8.2 also shows the changes in the actors involved at each stage of the policy process. At first the United Nations and foreign governments relatively frequently appeared in the newspaper Asahi because of demands from the South Korean government to take measures against hate speech, as well as the timing of the release of recommendations to Japan from the UN Human Rights Council. Although recommendations from the latter had no power in the policy process, requests from South Korea became the catalyst for considering policy alternatives. Likewise, the Prime Minister Shinzo Abe appeared in newspaper articles because he was requested to comment on hate speech during Diet questioning at the initial stage. The least represented among all was the Ministry of Justice, which had jurisdiction over human rights issues: it was basically against legal restrictions on hate speech.6 In contrast, anti-racist counter attacks, mostly organized by Japanese citizens recruited through social media, were present throughout the policy process. This was the most important actor in sustaining media attention by offering spectacles of anti-racist counter attacks nationwide. Unlike insider organizations such as the Association of Koreans in Japan (Mindan), Bar Associations and Human Rights Groups, the counter movement was much more frequently covered by the media, as shown in Table 8.3. Organizers of the counter movement, however, did not intend to provoke responses from the media. They initially aimed to stop harassment of Korean shops by Zaitokukai members.7 This culminated in these groups emerging centre stage, but the events brought about division of labour among civic groups: insiders had influence on policy alternatives, while the counter movement continued agenda setting. In terms of party competition, it was the Democratic Party of Japan that had ownership over the issue of hate speech. Table 8.4 shows that the majority of questions and proposals belonged to the DPJ until the first half of 2015. The DPJ never made an organizational effort,8 but took advantage of hate speech for party competition: DPJ members repeatedly interrogated some LDP members about their

Source: Data (4)

1–6/13 7–12/13 1–6/14 7–12/14 1–6/15 7–12/15 1–6/16 Total

5 12 7 22 8 8 14 76

35.7 35.3 31.8 30.6 47.1 38.1 28.0 33.0

3 3 4 21 2 4 4 41

N

N

%

nativist

anti-racist

21.4 8.8 18.2 29.2 11.8 19.0 8.0 17.8

% 5 1 0 27 0 8 25 66

N

Diet

35.7 2.9 0.0 37.5 0.0 38.1 50.0 28.7

% 0 5 1 10 0 0 7 23

N

judiciary

Table 8.2 Frequency of appearance of certain terms in hate speech-related articles

0.0 14.7 4.5 13.9 0.0 0.0 14.0 10.0

% 3 5 2 10 1 1 1 23

N

21.4 14.7 9.1 13.9 5.9 4.8 2.0 10.0

%

UN and foreign government

0 0 0 1 1 3 2 7

N

ministry

0.0 0.0 0.0 1.4 5.9 14.3 4.0 3.0

% 14 34 22 72 17 21 50 230

no. articles

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Table 8.3 Frequency of appearance of civic organizations on hate speech-related articles

Insider

Association of Koreans in Japan Forum for Foreigner’s Human Rights Act Buraku Liberation League Japan Bar Association Counter movement

Outsider

Asahi

Yomiuri

4 3 2 2 25

1 0 3 0 2

Table 8.4 Numbers of questions and proposals related to hate speech

1–6/13 7–12/13 1–6/14 7–12/14 1–6/15 7–12/15 1–6/16

LDP

DPJ

Komei Party

Japan Restoration Party (JRP)

Japan Communist Party (JCP)

Others

Total

0 0 2 0 1 1 6

3 1 4 11 6 4 11

0 0 1 0 1 1 4

0 0 0 4 0 1 1

0 0 0 2 4 1 5

1 0 1 1 0 2 1

4 1 8 18 12 10 28

Source: Data (2)

close relationships with nativist groups. The DPJ also included measures against hate speech in its manifesto for the 2014 general election.9 This is because the party considered that owning the issue of hate speech would improve the image of the DPJ. The opposition members, mostly from the DPJ, launched a Diet Member group to enact an Anti-Racism Law and drafted the Basic Law to Eliminate Racial Discrimination in April 2014. On the one hand, the influence of civic groups on the DPJ was rather ideational. In addition to the anti-racist counter movement, advocate groups included Mindan, the Buraku Liberation League and the Forum for Foreigner’s Human Rights Act. Among these groups, Mindan was the most strongly committed to anti-racism legislation. It launched a new committee to deal with hate speech and organized a national campaign to make petitions to local assemblies for adaptation of opinion briefs against hate speech.10 Lawyers from the Forum for Foreigner’s Human Rights Act offered expertise in legislation when the Diet member group prepared the draft. However, the political power of advocates in relation to the DPJ was rather limited. It was not the logic of constituency representation that stimulated the DPJ but that of party competition: the party was convinced of the merit of its commitment to hate speech to attract public support. On the other hand, the ruling LDP was hardly influenced by civic groups. Human rights groups had no contact with the LDP.11 Mindan was left in the cold because it backed the DPJ in the 2009 general election.12 While the DPJ dealt with hate speech in association with a variety of civic groups, the ruling parties were indifferent to it. It was the South Korean government that urged the LDP to take initial action regarding hate speech. When the Tokyo Governor

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Yoichi Masuzoe visited Seoul, the South Korean President Geun-Hye Park requested him to take measures against hate speech.13 Following the request, the LDP set up a project team (PT) regarding hate speech in August 2014 (Yomiuri Shimbun, August 15, 2014). However, the LDP opposed legal measures against hate speech as an infringement of freedom of speech.14 This is why the PT became inactive after several meetings which confirmed the difficulties involved in devising legal measures against hate speech.15 It solely invited legal experts who were against any kind of anti-hate speech laws. The short duration of the open window in Kingdon’s model suggests that the opportunity would pass if a ready alternative was not available (Kingdon, 1995, p. 170). Thus the LDP formally respected South Korea and established the PT, but actually waited for the passing of the open window for hate speech legislation. Because of the strong influence of American legal systems on Japan, freedom of speech became the most important constraining factor. All other parties were also wary of violating the right to freedom of speech, but there were perception gaps between the ruling and opposition parties. Figure 8.3 shows the difference in attitudes between articles of the conservative Yomiuri and progressive Asahi newspapers. While 24.5% of hate speech-related articles in Yomiuri referred to freedom of speech, Asahi placed less significance on it (only 7.3% of articles touched on freedom of speech). The figure also suggests the proportion of such articles were ever-increasing in the case of Yomiuri, which means that conservatives became more and more dependent on the idea of freedom of speech to stop the legislation process. Nevertheless, the LDP’s action created an opportunity to bring the issue forward to legislation, because its coalition partner the Komei Party began to enter into the policy process. The Komei Party, a religious party based on a Buddhist sect of Soka Gakkai, adopts a stance of peace and welfare. This centrist ideology led

40 Yomiuri

Asahi

30 20 10 0

Figure 8.3

13.1–6

13.7–12

14.1–6

14.7–12

15.1–6

15.7–12

16.1–6

Proportion of hate speech-related articles referring to “freedom of speech”

Source: Data (4)

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the party to follow a different path from the LDP. The Komei Party also set up its own PT one month after the LDP, but the party used this PT to seriously seek a realistic solution.16 On the one hand, it accepted the idea of the DPJ that legal measures were necessary. On the other hand, the Komei Party took a gradualist approach to avoid conflict with the LDP. Although the Komei Party PT endorsed the idea of the DPJ to enact a basic law against racial discrimination, it requested the Chief Cabinet Secretary Yoshihide Suga to conduct a survey on hate speech instead of taking legal measures. At the same time, the Komei Party narrowed the scope of the policy to focus on hate speech instead of racism in general, in order to weaken the resistance from the LDP. Party competition and legislation, August 2015–May 2016 In May 2015, the DPJ and Social Democratic Party of Japan submitted a bill to the Upper House that would outlaw racial discrimination. Since then, party competition determined the course of events. Opposition-initiated legislation is usually scrapped without discussion because agreement of the ruling parties is necessary to call up a bill (Herweg et al., 2015, p. 439). However, the Upper House decided to table the bill in August 2015. The DPJ attached importance to the bill and made full use of the resources available to the opposition. The DPJ used a new penal code bill as a bargaining tool asserting that the Diet should simultaneously discuss these bills.17 The DPJ took advantage of the sheer good fortune that the ruling coalition had to compromise with the opposition and receive cooperation for enactment of the penal code bill. Although the LDP did not embrace the opposition’s anti-racism bill, the DPJ could get its own back from the LDP by refusing to table the penal code bill, which reversed the power relationship between the ruling and the opposition parties. The ruling coalition then called on an informal meeting for a backroom deal with two opposition parties (Asahi Shimbun, August 20, 2015). The ruling parties asked the DPJ to submit a revised bill that narrowed the scope of the law to specialize it to hate speech instead of the anti-racism act (Arita, 2016, p. 37). Because the DPJ declined this suggestion, the ruling coalition was forced to draft its own bill in exchange for deliberation of the penal code bill. The LDP was still reluctant about the legislation, because it would not benefit from taking any legal measures. But it was under siege from other parties including the Komei Party. The LDP finally appointed Shoji Nishida as the Chief Executive of the Committee on Judicial Affairs of the Upper House. The reason for this appointment is complicated: he was a specialist of financial policy and had never belonged to the Committee. But he was a notorious extreme right politician having opposed any kind of human rights legislation, which qualified him to be in charge of preparing the LDP’s bill. The LDP had neither “branding” motivations nor expectation for support from groups of voters (cf. Carter & Jacobs, 2014, p. 138). Therefore leaders of the LDP in the Upper House expected him to be able to control other hard liners as well as to prepare a watered-down bill.18 In February 2016, the LDP

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5

4 LDP DPJ

3

JRP Komei

2

1

Figure 8.4

JCP

Voting rights for foreigners

Introduction of foreign workers

Legal regulation of hate speech

Opinions of lower house members during 2014 election campaign

Source: Data (3), 5 = disagree, 1 = agree

and the Komei Party launched a working team to draft the Anti-Hate Speech Act to be submitted to the Diet in April. At first the LDP advanced a Diet resolution instead of an anti-hate speech law, but the Komei Party declined it.19 The LDP unwillingly got down to drafting and submitting a bill which seemed to tolerate hate speech against irregular migrants. The bill of the ruling coalition aroused criticism from the opposition, but they settled for an additional resolution to outlaw hate speech against migrants and their descendants regardless of legal status. Once the bill was submitted to the Upper House, resistance within the LDP was not strong. This is partly owing to the tactic of using Nishida to convince other rightist colleagues. But more importantly, LDP politicians were not uncompromising about the Anti-Hate Speech Act compared with other related issues such as voting rights for foreigners: Figure 8.4 shows that the opinions of LDP lawmakers were relatively positive to the legal regulation of hate speech.

Conclusion: prolonged processes to deal with hate speech In this chapter, I traced the policy process towards enactment of the Anti-Hate Speech Act to answer my first research question. It was as if different actors relayed a baton from civil society to the core of the ruling coalition. At the beginning, the anti-racist movement succeeded in attracting media attention, which triggered agenda setting in the Diet. The baton was handed over to human rights lobbyists who suggested an anti-racism law as the policy alternative, urging the opposition for legislation. Arita served as an insider activist to converge different streams and the DPJ took advantage of the issue for party competition.

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Nevertheless, it is generally difficult for an opposition bill to make it onto the agenda unless the governing parties embrace it (Herweg et al., 2015, p. 439). On the one hand, the DPJ made full use of the revision of the penal code as a bargaining tool for hate speech legislation. On the other hand, the baton was handed to the Komei Party which showed a positive attitude towards legal regulation of hate speech. They made the political stream ripe for legislation. To put it differently, the LDP reluctantly prepared for the bill under siege by other parties. It is this unintended coalition, ranging from civil society to the ruling the Komei Party, that enabled the enactment of the Anti-Hate Speech Act. However, another story emerges from the point of view of norm cascades. The development of the policy process was also a process of compromise for the LDP: each time the baton was passed to the next runner, the effectiveness of the potential policy became weaker, finally resulting in an Anti-Hate Speech Act that the LDP could accept. At first human rights lobbyists thought it necessary to lay down the anti-racism law with penal codes. However, the opposition lawmakers proposed a draft that neither criminalized nor punished hate speech. In addition, although the opposition’s bill was based on the norm that regarded the anti-racism law as addressing the obligations of CERD, the Komei Party limited the scope of the policy by preparing a law specialized to hate speech. The LDP further rendered it ineffectual to submit a bill that had little to do with the requirements of CERD. In short, norm devaluation, instead of norm cascade, accompanied the development of the policy process towards the enactment of the Anti-Hate Speech Act. As a result, the enactment of the law put off the tasks necessary for tackling racism. Although the project team of the LDP quickly dissolved itself after the enactment of the law in 2016, that of the Komei Party and the opposition Diet Member group is still active. Decreased effectiveness of the Anti-Hate Speech Law has led to prolonged counter mobilization against nativist groups and further advocacy at the local level. Now the focus of anti-racism has shifted to advocacy for local governments to pass effective ordinances to regulate hate speech. Japan made a relatively meaningful response to hate speech in a short period, but still has miles to go to tackle it effectively.

Notes 1 To be more precise, the three streams are not completely independent. If the costs of paying attention are too high, or there is a lot of public opposition, even worthy items are prevented from becoming prominent (Kingdon, 1995, p. 88). 2 The policy window refers to opportunities in which advocates promote policy measures or push interests in certain problems (Kingdon, 1995, p. 165). 3 In reality, most agenda setting is less dramatic without any focussing event (Birkland, 1998). 4 The data are available from the following webpage: www.masaki.j.u-tokyo.ac.jp/utas/ utasindex.html. 5 Interview with Yoshifu Arita, a DPJ Upper House member on May 15, 2017. 6 Senior officials at the Ministry of Justice began to coordinate for consensus building after the anti-hate speech bill was prepared by the ruling coalition (interview with Yoshifu Arita, May 15, 2017).

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7 Interview with Yasumichi Noma, an organizer of C.R.A.C. (Counter Racist Action Collective), March 16, 2016. 8 Interview with Yoshifu Arita, November 7, 2017. 9 This was due to the large amount of media coverage (interview with Yoshifu Arita, May 15, 2017). 10 Mindan is a quasi-formal association of South Koreans in Japan and thus has a close relationship with the South Korean government. The other representative organization of Koreans, the General Association of Koreans in Japan (Soren), is associated with North Korea. Although Kyoto Korean School, affiliated to Soren, resorted to legal action against Zaitokukai, the organizational decline of Soren made it difficult for it to get involved with anti-hate speech activities. 11 Interview with the Forum for Foreigner’s Human Rights Act, March 20, 2017. 12 Interview with the Association of Koreans in Japan, March 27, 2017. 13 Although Japan-South Korea relations seemed to make a breakthrough in terms of legislation, in fact this was no more than an indirect factor in the development of the policy process: the LDP launched the hate speech PT out of obligation to South Korea. The Komei Party was concerned about the bilateral relationship, but it was not such an important factor in the legislation process (interview with Kiyohiko Toyama, a Komei Party Lower House Member, June 6, 2017). 14 Interview with Kiyohiko Toyama (June 6, 2017). 15 Interview with Katsuei Hirsawa, a LDP Lower House Member (November 2, 2017). 16 The PT invited a lawyer from the Forum for Foreigner’s Human Rights Act, who was closely associated with the DPJ. In addition, the PT members visited a Korean school in Kyoto to meet victims of hate speech. 17 Interview with Yoshifu Arita, November 7, 2017. 18 Interview with Shoji Nishida, an LDP Upper House member, August 29, 2017. 19 Interview with Shoji Nishida, August 29, 2017.

References Arita, Y. (2013). Hate Speech to Tatakau! Nihonban Haigaishugi Hihan [Fighting against hate speech! Critique of Japanese nativism]. Tokyo: Iwanami Shoten. Arita, Y. (2016). Jinshu Sabetsu Teppai Kihonho no Genjo to Kadai (The state of art and challenge of the Basic Law to Eliminate Racial Discrimination). Suihei Tokyo, 45, 33–42. Banaszak, L. A. (2010). The Women’s Movement Inside and Outside the State. Cambridge: Cambridge University Press. Best, J. (1990). Threatened Children: Rhetoric and Concern about Child-Victims. Chicago: University of Chicago Press. Birkland, T. (1998). Focusing events, mobilization and agenda setting. Journal of Public Policy, 18, 53–74. Burstein, P. (2014). American Public Opinion, Advocacy, and Policy in Congress: What the Public Wants and What It Gets. New York: Cambridge University Press. Burstein, P., Bricher, M., & Einwohner, R. L. (1995). Policy alternatives and political change: Work, family and gender on the congressional agenda. American Sociological Review, 60, 67–83. Burstein, P., Einwohner, R. L., & Hollander, J. A. (1995). The success of political movements: Bargaining perspective. In J. C. Jenkins & B. Klandermans (eds.) The Politics of Social Protest: Comparative Perspectives on States and Social Movements. London: UCL Press. Carter, N., & Jacobs, M. (2014). Explaining radical policy change: The case of climate change and energy policy under the British Labour Government 2006–10. Public Administration, 92(1), 125–141.

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Cohen, M. D., March, J. G., & Olsen, J. P. (1972). A Garbage Can Model of organizational choice. Administrative Science Quarterly, 17(1), 1–25. Downs, A. (1972). Up and down with ecology: The issue-attention cycle. Public Interest, 28, 38–50. Finnemore, M., & Sikkink, K. (1998). International norm dynamics and political change. International Organization, 52, 887–891. Green-Pedersen, C., & Krogstrup, J. (2008). Immigration as a political issue in Denmark and Sweden. European Journal of Political Research, 47, 610–634. Green-Pedersen, C., & Mortensen, P. B. (2010). Who gets the agenda and who responds to it in the Danish Parliament? A New Model of Issue Competition and AgendaSetting. European Journal of Political Research, 49, 257–281. Herweg, N., et al. (2015). Theoretically refining the multiple streams framework straightening the three streams: Theorising extensions of the multiple streams framework. European Journal of Political Research, 54, 435–449. Higuchi, N. (2016). Japan’s Ultra-Right. Melbourne: Trans Pacific Press. Hilgartner, S., & Bosk, C. (1988). The rise and fall of social problems: A public arenas model. American Journal of Sociology, 94, 53–78. Jennes, V. (2007). The emergence, content, and institutionalization of hate crime law: How a diverse policy community produced a modern legal fact. Annual Review of Law and Social Science, 3, 141–160. Jerit, J. (2008). Issue framing and engagement: Rhetorical strategy in public policy debates. Political Behavior, 30, 1–24. King, B. G., Bentele, K. G., & Soule, S. (2007). Protest and policymaking: Explaining fluctuation in congressional attention to rights issues, 1960–1986. Social Forces, 86(1), 137–164. Kingdon, J. W. (1995). Agendas, Alternatives, and Public Policies, 2nd ed. New York: Harper Collins College. Kitschelt, H. (1989). The Logics of Party Formation: Ecological Politics in Belgium and West Germany. Ithaca: Cornell University Press. Martin, C. (2018). Striking the right balance: Hate speech laws in Japan, the United States, and Canada. Hastings Constitutional Law Quarterly, 45(3), 455–532. Mintrom, M. (1997). Policy entrepreneurs and the diffusion of innovation. American Journal of Political Science, 41(3), 738–770. Odmalm, P. (2011). Political parties and “the immigration issue”: Issue ownership in Swedish Parliamentary Elections 1991–2010. West European Politics, 34(5), 1070–1091. Petrocik, J. R. (1996). Issue ownership in presidential elections, with a 1980 case study. American Journal of Political Science, 40(3), 825–850. Petrocik, J. R., Benoit, W. L., & Hansen, G. J. (2004). Issue ownership and presidential campaigning, 1952–2000. Political Science Quarterly, 118(4), 599–626. Vliegenthart, R., Walgrave, S., & Meppelink, C. (2011). Inter-party agenda-setting in the Belgian Parliament: The role of party characteristics and competition. Political Studies, 59(2), 368–388. Walgrave, S., & Varone, F. (2008). Punctuated equilibrium and agenda-setting: Bringing parties back in: Policy change after the Dutroux Crisis in Belgium. Governance, 21(3), 365–395.

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Free marketplace of ideas Applying the approach of the UN Human Rights Committee and the European Court of Human Rights in Philippine internet hate speech cases Gemmo Bautista Fernandez*

Introduction While it has been an invaluable tool for thriving democracies, the rise of the Internet has also been accompanied by dangers. As this method of communication relies on electronic information dissemination systems rather than traditional mass media intermediaries, it has made the globalized exchange of ideas easier. Hence, both those seeking social improvement and those promoting hateful speech can now increase the magnitude, diversity and location of their audiences (Tsesis, 2001, p. 819; see Human Rights Committee, 2011, ¶15; Human Rights Council, 2013, ¶28). It has also been observed to have been used in disseminating hate speech in the form of racist discourse, religious superiority, gender intolerance, or incitement to violence (Committee on the Elimination of Racial Discrimination, 2012, ¶34). The chapter supports the application in the Philippines of the approach of the United Nations Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR) in regulating hate speech on the Internet. While there is no universally accepted definition of what constitutes hate speech, it could be understood broadly as to encompass all forms of expression that spread, incite, promote or justify racial hatred, xenophobia, or other forms of hatred based on intolerance (Committee of Ministers to Member States, 1997). These include, among others: glorification of violence, speeches against religion, race or ethnicity, and sexual orientation (Günduz v Turkey, 2003, ¶40; Erbakan v Turkey, 2006, ¶56). By regulation, the article supports the view that hate speech may be restricted for the protection of public order and the rights of others provided that these limitations are prescribed by law, proportionate and necessary for a democratic society.

Internet and hate speech Increasing dissemination of hate speech on the internet The Internet has become a “principal means by which individuals exercise their right to freedom of expression and information, providing . . . essential tools for

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participation in activities and discussions concerning political issues and issues of general interest” (Yildirim v Turkey, 2012, ¶54; Human Rights Committee, 2011, ¶15). These developments however have not materialized without a cost. Manifestations of “hate speech have [also] become increasingly visible” (La Rue, 2012, ¶24). There has been a “worrying increase in the number of expressions of hate, incitement to violence and discrimination” (Committee on the Elimination of Racial Discrimination, 2006, ¶8; 2008, ¶16). Further, the “Internet [has been] used to disseminate racist discourse, ideas of racial superiority, intolerance and incitement to racial violence” (Ruteere, 2014, ¶2; Gagliardone et al., 2015, p. 13). These trends are considered as a concern, “given that every individual human being is entitled to the same dignity and rights, including the right not to be discriminated against, regardless of national origin, social, racial, ethnic or religious background, disability, gender, sexuality or any other grounds” (La Rue, 2010, ¶75). Recognizing this, some information technology companies have agreed with the European Commission on the Code of Conduct on illegal online hate speech (European Commission, 2016). These measures include the following: 1) placing clear and effective processes to review notifications regarding illegal hate speech on their services so information technology companies can remove or disable access to such content; 2) reviewing the majority of valid notifications for removal of illegal hate speech and removing or disabling access to such content; and 3) raising awareness with users about the types of content not permitted under their rules and community guidelines. In the Philippines, efforts to address hate speech have stalled. While case law recognizes the inherent dangers ushered in by the communications over the Internet (Disini v Secretary of Justice, 2014), none of the proposed measures have ever come into fruition (S Bill no 52, 2013; S Bill no. 1091, 2015; S Bill no. 1492, 2017). Factors affecting the dissemination of hate speech on the internet These problems are ushered in by the unique characteristics of the Internet with regard to facilitating information. While online hate speech is not intrinsically different from similar expressions found offline, there are peculiar challenges unique to the former. The first characteristic refers to the ease in the creation and circulation of information. Unlike traditional media, the Internet entails relatively low barriers to entry (McGonagle, 2010, p. 420). The creation of information in the former entails more cost and is subject to more controls. By contrast, anyone with an Internet connection can cause any material to be circulated in the Internet. Further, while traditional media would be limited to the area where the material is published or broadcasted, the Internet effectively allows anyone connected to view such information. This contributes to the abundance of hateful expressions (Human Rights Committee, 2011, ¶15). The second characteristic refers to the relative endurance of materials that promote hate speech. Hate speech can stay online for a long time in different

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formats across multiple platforms being stored in numerous servers. Further, hate speech online can be itinerant. Even when content is removed, it may find expression elsewhere. The endurance of hate speech materials online is unique due to its low cost and potential for immediate revival, ensuring its continued presence (Gagliardone et al., 2015, p. 14; Hammack, 2002, p. 83). This means that there is a danger that victims of hate speech will continuously, or at least repeatedly, be confronted by the same instances of hate speech after their original articulation. . . . Leading critical race theorists have argued cogently that the incessant and compounding aspects of hate speech exacerbate its impact. (McGonagle, 2013, p. 4) The third pertains to the anonymity in the distribution of materials that presents a challenge to dealing with hate speech online. Anonymous use has afforded individuals the ability to disseminate distasteful messages to vast audiences without fear of personal accountability. Worse, existing technology that makes the Internet possible also allows users to encrypt their identity and location (Azriel, 2008, p. 93 citing Lessing, 1999, p. 166). This means that “there will be more instances of harmful speech in cyberspace than in a medium where retribution is more likely” (Freiwald, 2001, p. 588; Citron, 2009, p. 66). Moreover, the lack of accountability further allows other individuals to follow suit and engage in disparagement over the Internet (Delgado & Stefancic, 2014, p. 314). On the part of the victims, the relative ease of maintaining anonymity in an online environment can contribute to an exacerbation of the emotional or psychological harm inflicted on victims of hate speech (McGonagle, 2013, p. 31). Lastly, no single entity administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers. Further there is no centralized location, control point, or communications channel for the Internet (ACLU v Reno, 1996, p. 832). This, coupled with the transnational reach of the Internet thereby raising issues of jurisdiction, makes it difficult to regulate or combat hate speech on the Internet (Gagliardone et al., 2015, p. 14). From these characteristics spring the recognition that Internet hate speech presents graver dangers than that of traditional media. Hence, while the “Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression” it must be recognized that it may equally “adversely affect other rights, freedoms and values, such as the respect for private life and . . . the dignity of human beings” (Editorial Board of Pravoye Delo & Shtekel v Ukraine, 2011, ¶30; Féret v Belgium, 2009, ¶77). Because [t]he risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the

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[traditional media], . . . the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned. (Editorial Board of Pravoye Delo & Shtekel v Ukraine, 2011, ¶63) The regulation of hate speech on the Internet then seems justified, especially considering the “vital importance of combating discrimination in all its forms and manifestations” (Jersild v Demnark, 1994, ¶33).

Hate speech under Philippine case law Hate speech in the Philippines Expressions of hate, understood as those expressions that are intended to incite violence or prejudicial action against, intimidate, or degrade certain social groupings (Committee of Ministers to Member States, 1997), have also become prevalent in the Philippines with the advent of the Internet and social media. Supporters of the current administration, which may include a ‘keyboard army’ reportedly funded by the government (Freedom House, 2017, p. 7; Reyes & Mallari, 2016; Caruncho, 2016; GMA News, 2017; Bradshaw & Howard, 2017), have attacked government critics branding them as dilawan in reference to colour yellow attributed to the previous ruling party (Bueno, 2017). Journalists have also been targeted by attacks for reporting news or expressing opinions critical of the government (Palatino, 2017; Rappler, 2016). Repeated calls have been made to eliminate suspected drug addicts without the due process of the law (Associated Press, 2016; Gomez, 2016). Only recently, the current sitting president of the Republic uttered anti-Catholic comments that sparked anger in the predominantly Catholic country (ABC News, 2018; BBC News, 2018). But the expressions of hate in the Philippines are not limited to the denigration based on political views, profession, or suspected illegal habits. Instances in the past have included expressions of hate based on gender and religion. For instance, the Philippine Commission on Elections denied the registration of party-list purportedly representing the lesbian, gay, bisexual and transgender community as it ‘tolerates immorality which offends religious beliefs’ (Ang Ladlad LGBT Party v COMELEC, 2010). The Philippine Supreme Court subsequently ruled that such denial violates the Philippine Constitution (Ang Ladlad LGBT Party v COMELEC, 2010). A senatorial candidate in the past has also expressed that homosexuals are worse than animals (BBC News, 2016). With regard to religion, cases in the past included a newspaper article portraying Muslims in a bad light but was ultimately dismissed on procedural grounds (MVRS v Islamic D’wah Council of the Philippines, 2003). Expressions of television evangelists had also been censored on the grounds of obscenity (Soriano v Laguardia, 2009; compare with Iglesia ni Cristo v Court of Appeals, 1996).

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Despite the prevalence of hateful expressions, few cases had been brought before the Philippine courts. Even more lacking are laws regulating hate speech as there appears to no explicit regulation against hate speech under Philippine law. To make matters worse, efforts to address hate speech appear to have stalled. While case law recognizes the inherent dangers ushered in by the communications over the Internet (Disini v Secretary of Justice, 2014), none of the proposed laws have ever come to fruition (S Bill no 2463, 2014; S Bill no 1091, 2015; S Bill no 1492, 2017). Thus, cases involving hateful expressions, Philippine courts have generally been decided within the framework of the constitutional protection on free speech or on the basis of the catch-all provision of the Philippine Civil Code on the abuse of rights. The relative freedom afforded to speakers of hateful expressions following the US approach further exacerbates the problem in curbing hate speech. Philippine case law on freedom of expression and hate speech Philippine case law adopts the standards on freedom of expression and hate speech of the US. Being a former unincorporated territory, US case law retains persuasive weight in the Philippines (People v Marti, 1991; see Alzua v Johnson, 1912; In re: Max Shoop, 1920). In Chavez v Gonzales, it has been mentioned that “the cognate rights codified by . . . the Constitution, copied almost verbatim from the First Amendment of the US Bill of Rights, were considered the necessary consequence of republican institutions and the complement of free speech” (Chavez v Gonzales [Carpio, concurring], 2008). True enough, both provide that no law shall be passed “abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances” (US Constitution, amend I; 1987 Philippine Constitution, Article III, §4). In a plethora of cases, the Philippine Supreme Court has looked into SCotUS for support in issues that deal with freedom of expression (US v Bustos, 1918, p. 740; Planas v Gil, 1939; US v Perfecto, 1922). The approach springs forth from the principle that all ideas and points of view should be provided to the people for consideration. This is known as the “marketplace of ideas” theory. It was first enunciated by Holmes in the case of Abrams: “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out” (Abrams v US [Holmes, dissenting], 1919). From then on, the SCotUS has in numerous cases reiterated the continued validity of this doctrine (Reno v ACLU, 1997, p. 885; Bigelow v Virginia, 1975, p. 826; Red Lion Broad v FCC, 1969, pp. 389–390). In Boos v Barry, the Court stated that the public “must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment” (Boos v Barry, 1988, p. 322; citing Hustler Magazine v Falwell, 1988, p. 56; see City of Houston v Hill, 1987, p. 472). In Johnson, the SCotUS enunciated that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (Texas v Johnson,

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1989, p. 414), “the fact that society may find speech offensive is not a sufficient reason for suppressing it” (RAV v City of St Paul, 1992, p. 386). The reason behind this flows from the theory of the marketplace of ideas that states: the “function of free speech . . . is to invite dispute [and] [i]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger” (Cox v Louisiana, 1965, p. 552; see Kiska, 2012, p. 138). It also considers that most of the time “speech is often provocative and challenging [and] [i]t may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea” (Cox v Louisiana, 1965, p. 552). As such, freedom of speech is protected against censorship or punishment as the alternative would lead to standardization of ideas (Madsen v Women’s Health Centre, 1994, p. 763; US v Eichman, 1990, pp. 318–319; Simon & Schuster v Members of the New York State Crime Victims Board, 1991, p. 118). In Snyder, it was stated that the “[public] cannot react to pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate” (Snyder v Phelps, 2011, p. 1220). Despite this profound protection, Philippine and US courts have nonetheless recognized that not all forms of expression contribute to discussion. While some forms of expression contribute to the discussion of the public, some forms are capable of perpetrating serious harm (Chaplinsky v New Hampshire, 1942, pp. 571–572). Currently, there are three forms of expression that are deemed unprotected: obscenity, defamation and speech that creates “clear and present danger” (see Memoirs v Massachusetts, 1966, p. 420; Miller v California, 1973, pp. 23–24; Beauharnais v Illinois, 1952; New York Times v Sullivan, 1964; Gertz v Welch, 1974; Gitlow v New York, 1925; Schenck v US, 1919; Dennis v US, 1951; Yates v US, 1957; Noto v US, 1961). It appears that under Philippines and US case law, there is generally no prohibition against hate speech. This means that even speech that promotes racial or ethnic hatred, xenophobia, or other forms of hatred based on intolerance may be deemed protected unless such expression would amount to one of the three classes of expression that is deemed not protected. For instance, in the Philippine case of Iglesia ni Cristo v CA, some pre-taped episodes of the religious group Iglesia ni Cristo were rated not for public viewing by the Board of Review for Moving Pictures and Television (MTRCB). These programmes allegedly offended and constituted an attack against other religions that is expressly prohibited by law because of the controversial biblical interpretations and its attacks against contrary religious beliefs (Iglesia ni Cristo v Court of Appeals, 1996). The Court considered the alleged attacks to be mere criticisms of some of the deeply held dogmas and tenets of other religions. Citing Cantwell v Connecticut: the bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of duelling ideas . . . the marketplace of ideas demands that speech should be met by more speech for it is the

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spark of opposite speech, the heat of colliding ideas that can fan the embers of truth. (Cantwell v Connecticut, 1940, p. 309) The case of Soriano v Laguardia stands in contrast with the case of Iglesia ni Cristo. Here, the host of a television programme from a rival religion of Iglesia ni Cristo made comments in his television programme against the host of the latter religion’s programme. The host spoke that the other host is “worse than an offspring of prostitute” among others. The MTRCB issued a preventive suspension upon the erring host. The Court in upholding the suspension order dismissed the claim under freedom of expression and religion stating that “there is nothing in [host’s] statements subject of the complaints [that expresses] any particular religious belief, nothing furthering his avowed evangelical mission.” The expression, citing Chaplinksy and Miller, was deemed of low value and thus unprotected (Soriano v Laguardia, 2009). In MVRS v Islamic D’wah Council of the Philippines, the Council filed a complaint for damages on their own behalf and as a class suit on behalf of the Muslim members nationwide against MVRS arising from an article in a daily tabloid. The Council alleges that such was insulting and damaging to the Muslims; that these words were not only published out of sheer ignorance but with intent to hurt the feelings, cast insult and disparage the Muslims and Islam. The Court stated that: [i]n a pluralistic society like the Philippines where misinformation about another individual’s religion is as commonplace as self-appointed critics of government, it would be more appropriate to respect the fair criticism of religious principles, including those which may be outrageously appalling, immensely erroneous, or those couched as fairly informative comments. (MVRS v Islamic D’wah Council of the Philippines, 2003; See Civil Code of the Philippines, art 2219(7); Revised Penal Code, art 133) This approach is not surprising considering the US roots of Philippine case law on the freedom of expression. In Brandenburg the expressions in issue were the speeches that have reference to the “revengeance” against “niggers,” “Jews,” and those who supported them. While it could be considered as expression that promotes intolerance, the US Supreme Court (SCotUS) considered it to be protected as it did not rise to the level of speech that could spark imminent lawless action (Brandenburg v Ohio, 1969, p. 447; see Hess v Indiana, 1973, p. 109). In Claiborne Hardware, the speech advocating boycott of African-American-owned stores containing the words “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck” was similarly held to be protected (NAACP v Claiborne Hardware Co, 1982, p. 934). The case of National Socialist Party of America v Village of Skokie involved the denial, by local authorities, of permit to speak requested by pro-Nazi organizers who were planning to march in an Jewish town. It was decided that the use of the Swastika is a

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symbolic form of free speech entitled to First Amendment protections and that the Swastika itself did not constitute fighting words (National Socialist Party of America v Village of Skokie, 1977). In Virginia v Black, the Court deemed Virginia’s statute against cross burning as unconstitutional. However, it also considered that cross burning done with intent to intimidate may be restricted because such expression has a long and pernicious history as a signal of impending violence (Virginia v Black, 2003, p. 359; see RAV v City of St Paul, 1992). The case of Snyder v Phelps involved a claim of intentional infliction of emotional distress made by a homosexual man and the father of a killed marine against protesters at military funeral who displayed placards such as “America is doomed,” “You’re going to hell,” “God hates you,” “Fag troops,” “Semper fi fags,” and “Thank God for dead soldiers.” The Court ruled against the claimants stating that the memorial service was not disturbed as “[protesters] stayed well away from the memorial service, [and the claimants] could see no more than the tops of the picketers’ signs.” Further “there is no indication that the picketing interfered with the funeral service itself” (Snyder v Phelps, 2011).

Freedom of expression in the European Court of Human Rights and the United Nations Human Rights Committee United Nations Human Rights Committee Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to freedom of expression. The article requires states parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers (Human Rights Committee, 2011, ¶11; Fernando v Sri Lanka, 2005c; Coleman v Australia, 2006; Velichkin v Belarus, 2005a; Mavlonov & Sa’di v Uzbekistan, 2009; Shin v Republic of Korea, 2004; Ross v Canada, 2000). However, the right is considered not to be absolute as it should be balanced with the other rights embodied in the ICCPR (ICCPR, art 5[1]). The same article expressly stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities and for this reason certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole (Human Rights Committee, 1983, ¶4). Hate Speech under Article 19 Under Article 19(3), the right to freedom of expression may be restricted by states parties under select circumstances: “[f]or respect of the rights or reputations of others; [f]or the protection of national security or of public order, or of public health or morals.” However, such limitation must not destroy or impair the essence of the right (ibid., ¶21). Further, it has been held that the restriction on the right must also be provided for by law, and must be necessary to achieve one of these purposes (Marques de Morais v Angola, 2005b, ¶6.3). The regulation of hate speech may fall under the legitimate aims enumerated in Article 19(3). For instance, the case of Faurisson v France concerned an

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author’s denial of the existence of gas chambers during the Holocaust. It has been held that the restriction was valid since the statements “were of a nature as to raise or strengthen anti-Semitic feelings” (Faurisson v France, 1996, ¶9.6; compare with Human Rights Committee, 2011, ¶49; see 2018, ¶9). In Ross v Canada, the HRC held that “the rights or reputations of others for the protection of which restrictions may be permitted under Article 19, may relate to other persons or to a community as a whole.” Further, it was ruled that the “restrictions imposed on [the author] were for the purpose of protecting the rights or reputations of persons of Jewish faith, including the right to have an education in the public school system free from bias, prejudice and intolerance” (Human Rights Committee, 2000, ¶11.5). Hate Speech under Article 20 Article 20 expressly limits expression when it amounts, generally, to expressions that promotes hostility. The prohibition under Article 20(1) extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the UN charter. On the other hand, Article 20(2) is directed against any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such propaganda or advocacy has aims that are internal or external to the state concerned (Human Rights Committee, 2004a). From this, it seems that the right to freedom of expression may be legitimately restricted in the case of advocacy that incites to acts of violence or discrimination against individuals on the basis of their religion, race, or nationality (Jahangir, 2010, ¶42). However, mere expression of views, though deemed offensive by some, and the advocacy of hatred that constitutes incitement to discrimination, hostility, or violence must be distinguished. The advocacy “must have the intention of inciting to discrimination, hostility or violence” (Human Rights Committee, 2010, ¶4.3). Moreover, the context and the impact of the expression are also taken into consideration (Human Rights Committee, 2000, ¶11.3). Hence, to determine whether an expression has reached the standard set forth by Article 20, each case has to be examined on its own merits so that the freedom of expression and the rights affected by such expression are not undermined. In this regard, “the judiciary plays a vital role in striking a delicate balance on a case-by-case basis” (Jahangir, 2010, ¶43). Article 20 has also been held to be a disqualification measure in connection with Article 3 of the Optional Protocol. The case of JRT and the WG Party v Canada concerned the dissemination, through the telephone system of messages that warn against the “dangers of international finance and international Jewry leading the world into wars, unemployment and inflation and the collapse of world values and principles.” There, the claim of violation of Article 19 was held to be inadmissible. It was stated that the expression that is sought to be disseminated “clearly constitute the advocacy of racial or religious hatred that [the State] has an obligation under Article 20(2)” to prevent. Hence, the communication is, in respect of this claim, incompatible with the provisions of the covenant” (Human Rights Committee, 1984, ¶8[b]; see 2010, ¶6.4).

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European Court of Human Rights The ECHR similarly provides protection for the freedom of expression as embodied in Article 10(1). Nonetheless, like the ICCPR, it imposes “duties and responsibilities” on the speaker as provided for in Article 10(2). Akin to the treatment of the ICCPR, these limitations must be viewed not as a restriction on the right per se but a balancing act between the conflicting interest that result from the exercise of two or more fundamental freedoms (Aydin Tatlav v Turkey, 2006, ¶26; Hannover v Germany [no 2], 2012, ¶114). The limitations, to be valid, must satisfy the “three-part test” similar to the HRC. The test provides that such limitations must: be prescribed by law; be necessary in a democratic society; and have a legitimate aim (Müller and others v Switzerland, 1988, 19; Axel Springer AG v Germany, 2012, ¶77; Chauvy and Others v France, 2004, ¶70; Pfeifer v Austria, 2007, ¶35). Moreover, the parameters surrounding the speaker are considered, which may include among others: context, intention, status of the speaker and form and impact of speech (see Erdogdu and Ince v Turkey, 1999, ¶54). Lastly, the subject-matter of the expression is also considered (see Otto-Preminger-Institut v Austria, 1994, ¶49). Hate Speech under Article 10 The protection afforded to expression by the Convention, subject to Article 10(2), has been said to be “applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the [s]tate or any sector of the population” (Handyside v United Kingdom, 1976, ¶49). These are “the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society” (ibid.). Despite this broad protection, expression under certain instances, may be restricted when it amounts to speech that “spread, incite, promote or justify hatred based on intolerance” (Günduz v Turkey, 2003; Erbakan v Turkey, 2006). The first class of hate speech under European case law concerns expression that glorifies violence (see Gerger v Turkey 24919/94, 1999, ¶47; Sürek v Turkey [no 1], 1999; Gündem v Turkey, 2000; Medya FM Reha Radyo v Turkey, 2006). Under this class, negationist and revisionist opinions of gross human rights violations are considered not to be protected speech as it may be considered as an apology of violence (M’Bala M’Bala v France, 2015; see Honsik v Austria, 1995; Lehideux and Isorni v France, 1998, ¶53; compare with Perinçek v Switzerland, 2015). Similarly, the condonation of violence or destruction is also not protected (Leroy v France, 2008). Under the second class, expressions that incite racial or ethnic hatred also fall under the classes of expression that constitute hate speech under Article 10. The reason for this is that the Court views expressions that incite discrimination is prohibited under Article 14 of the Convention and the additional protocol (Glimmerveen v Netherlands, 1979). Further, the Court have noted the effect of this kind of expression as to give rise to a feeling of rejection and antagonism (Soulas v France, 2008, ¶42; see Dicle [no 2] v Turkey, 2006; Le Pen v France, 2010). In another case, the Court noted that attacks on persons committed by insulting,

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holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner (Féret v Belgium, 2009, ¶73). Under the third class, expressions that promote, justify, or incite religious intolerance are also considered as hate speech under European case law. The Court has stated that those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. (Otto-Preminger-Institut v Austria, 1994, ¶47; see Nur Radyo Ve Televizyon v Turkey, 2007, ¶30; Giniewski v France, 2006, ¶52) However, the Court has also held that measures against blasphemous expressions were intended to provide protection against seriously offensive attacks on matters regarded as “sacred” by a groups of individuals (Wingrove v United Kingdom, 1996, ¶57). Further, the Court has ruled that comments that constitute an abusive attack on the religious figures such that “believers may legitimately feel themselves to be the object of unwarranted and offensive attacks are not protected by the Convention” (IA v Turkey, 2005, ¶29). It must be noted that in this type of cases, “a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion” (Murphy v Ireland, 2003, ¶67). The Court is mindful that “as in the field of morals, and perhaps to an even greater degree, there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions” (ibid.). Hence, state authorities are in principle in a better position to give an opinion on the exact content of these requirements with regard to the rights of others (ibid.). Lastly, expressions concerning attacks on sexual orientation seem to be the least developed issue in European case law. In Vejdeland v Sweden the Court found that leaflets accusing homosexuals to be the cause of HIV constituted serious and prejudicial allegations, even if they had not been a direct call to hateful acts. The Court stressed that discrimination based on sexual orientation was as serious as discrimination based on race, origin or colour though it did not label such as hate speech (Vejdeland v Sweden, 2012 ¶¶54–5). Abuse of rights under Article 17 Article 17 provides that: nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein

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or at their limitation to a greater extent than is provided for in the Convention. The provision applies not only to states but also to private individuals (Weber, 2012, p. 22). While not an additional restriction, the article guarantees the maintenance of values and principles enshrined under the Convention. The article, in some cases, serves as a disqualification measure preventing groups from destroying any of the rights and freedoms while at the same time claiming protection under such rights and freedoms. In Lawless (No 3) v Ireland, the Court held that: “no person may be able to take advantage of the provisions of the Convention to perform acts aimed at destroying the aforesaid rights and freedoms” (Lawless v Ireland, 1961, ¶7; see Glimmerveen & Hagenbeek v Netherlands, 1979; Marais v France, 1996; Lehideux and Isorni v France, 1998, ¶¶47, 53).

Comparative analysis Degree of tolerance The degree of tolerance refers to the sensitivity of the jurisdiction in ruling that the expression is already unprotected. It appears that HRC and the ECtHR have a similar degree of tolerance. Article 19(3) of the ICCPR and Article 10 provide explicit limitations to the right to freedom of expression. Both conventions also provide for disqualification measures that permit the inadmissibility of claims based on the acts of the speaker. The treatment afforded by the ECtHR flows from the realization that while the “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment” (Rekvényu v Hungary, 1999, ¶34), the abuse or irresponsible use of freedom of expression is nevertheless “incompatible with democracy and human rights and infringes the rights of others” (Witzsch v Germany, 2005; Féret v Belgium, 2009, ¶73). The ECtHR has refused to apply the same degree of tolerance afforded by the US considering this to be a “very high threshold” that “for many well-known political and historical reasons today’s Europe cannot afford the luxury of such a vision of the paramount value of free speech” (Vejdeland v Sweden [Yudkivska, concurring], 2012, ¶6). The ECtHR is also of the opinion that “racist and extremist opinions can bring much more harm than restrictions on freedom of expression” (ibid., p. 11). On the other hand, the treatment of the HRC reflects factors that precipitated the drafting and subsequent adoption of the United National Declaration on Human Rights (UDHR) and ICCPR. During the drafting stages of the UDHR, one of contentious questions that arose was how tolerant should the public be with regard to freedom of expression “in light of the history of fascist propaganda that brought Europe into World War II under the Nazi’s regime in Germany” (Morsink, 1999, p. 66) considering that “[p]ropaganda in favour of racial or national exclusiveness or superiority [has] served as an ideological

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mask for imperialistic aggression” (ibid.). A view entertained was that “one could not allow advocacy of hatred or racial, national or religious contempt [and] without such a prohibition, any Declaration of Human Rights would be useless” (ibid.). While the proponents of such views failed to garner enough votes to place stricter limitations in the UDHR and subsequently the ICCPR, they were nevertheless, as previously discussed, able to have Article 20 be included in the ICCPR. In any case, Article 19 as it stands seems to have balanced both opposing views with Article 19(1) guaranteeing the freedom of expression and with Article 19(3) allowing for broader restrictions. The African Commission on Human and People’s Rights subscribe to the same degree of tolerance. It has stated that there seems to be an international consensus among states [regarding the] need to restrict the right to freedom of expression to protect the rights or reputation of others, for national security, public order, health or morals. Freedom of expression is not therefore an absolute right, it may be restricted for the reasons mentioned above but such restrictions should be necessary and have to be clearly provided by law. (Good/Botswana, 2010, ¶187) The test employed by the Commission also bears a striking resemblance to that of the HRC and the ECtHR: “[a]ny restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society” (Scanlen & Holderness/Zimbabwe, 2009, ¶107). Nonetheless, the Commission has since dealt with a case on incitement to hatred, discrimination and violence but without explicitly elaborating what may be considered hate speech (Maina et al., 2011). By contrast, the Philippine and US courts afford a higher degree of tolerance for expressions that amount to hate speech. As such, only when expression is capable of perpetrating serious harm would it be proscribed. As previously demonstrated, unless the expression presents a “clear and present danger,” or it amounts to expressions considered as obscene or defamatory, such would be considered as protected (Vejdeland v Sweden [Yudkivska, concurring], 2012, ¶6). To some extent, the Inter-American Court of Human Rights has concurred with this the degree of tolerance. Under its case law, what may considered as hate speech is not merely expression that fosters intolerance but must take the form of “direct and public incitements to genocide, war propaganda, and hate speech that constitute incitements to violence with the intent and ability to cause such violence” (Special Rapporteur for Freedom of Expression InterAmerican Commission on Human Rights, 2010, ¶61). In Donoso v Panama, the Court stated that “[t]hese restrictions are exceptional in nature and should not limit, unless strictly necessary, the free exercise of freedom of expression and become a direct or indirect method of prior censorship” (Tristan Donoso v Panama, 2009, ¶109). Further, it appears that the test employed by the Court is stricter than that of the ECtHR:

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the limitation must have been defined in a precise and clear manner by a law, in the formal and material sense; [it] must serve compelling objectives authorised by the Convention; and [it] must be necessary in a democratic society to serve the compelling objectives pursued, strictly proportionate to the objective pursued, and appropriate to serve said compelling objective. (Special Rapporteur for Freedom of Expression Inter-American Commission on Human Rights, 2010, ¶67) Moreover, while limitations to freedom of expression may imposed for the protection of the rights of others, “it is necessary for those rights to be clearly harmed or threatened” (ibid., ¶77). In Bustos v Chile, the Court ruled that the prior censorship of a film for being blasphemous is not proper. This fell outside the category of “moral protection of the young” for which prior censorship was allowed (Bustos v Chile, 2001, ¶71). Moreover, the Court also held that the government has failed to comply with the general obligation to respect the rights and freedoms recognized in the Convention and to guarantee their free and full exercise (ibid., ¶86). Balancing of freedoms The balancing of freedoms refers to the end effect of hate speech analysis. The determination of whether an expression amounts to hate speech does not only affect the speaker but also the object of the expression as it also affects the latter’s fundamental rights. Hence, a balance between these two competing rights must be struck. The ICCPR and ECHR, along with the other human rights treaties, do not impose a hierarchy among the rights embodied therein beyond recognized jus cogens rights (Meron, 1986, p. 1 cited in Taylor, 2006, p. 329; Nickel, 2008, p. 985; Donnely, 2003, pp. 27–33; Teeple, 2004, p. 24). By hierarchy, it means that these instruments do not prescribe categories of human rights that are more important than others. Furthermore, these instruments do not prescribe any particular method of resolving conflicts between them. These tasks are therefore, largely at the Court’s discretion (Greer, 2000, p. 28). Hence, when faced with a conflict between competing rights and interests, courts usually favour a judicial approach where the relevant rights and interests are “harmonised” with due regard to the particular circumstances of each case. Such balancing is more an artistic exercise than a scientific one as the circumstances of each case will ultimately determine which norm shall prevail (Callamard, 2008 citing Pech, 2006). The ICCPR “obliges states parties to provide effective domestic remedies for persons whose ICCPR rights are violated” (Joseph & Castan, 2013, p. 10; see ECHR, art 1). Further, it directs the enforcement of these remedies (ICCPR, art 2[3][c]). Related to this is Article 5 of the ICCPR that provides that the obligation not only for the state to not undermine the enjoyment of rights enshrined under the it but also enjoins groups and persons to the same (Human Rights

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Committee, 1984, ¶13.3). The failure of the state party to secure the enjoyment of these rights either by its acts or of its agents but also by private persons or entities “would give rise to violations by states parties of those rights” (Human Rights Committee, 2004, ¶8.8). Hence, states parties may, and in fact are, required to with due diligence prevent the harm caused by acts of private persons or entities or provide redress when there exists such harm (ibid.). As such, when the level of speech already reaches a degree that amounts to abuse of a right or disregard to the rights of others, or in certain cases public order, the courts have stepped in not to necessarily restrict the right of the speaker but to rule that such right has been overstepped to the detriment of others (Erbakan v Turkey, 2006, ¶56; Perniçek v Switzerland, 2015, ¶189). This degree of tolerance have allowed the courts to be more sensitive, but not partial, to the need to respect the rights or reputations of those targeted by speech that promotes intolerance, or in extreme cases, those that advocate of national, racial or religious hatred or constitutes incitement to discrimination, hostility or violence (Heyman, 1998, p. 1315 cited in Tsesis, 2001, p. 864). The approach, while may be considered as “victim-centric,” aims to prevent the occurrence of serious harms (McGonagle, 2010; see Belavusau, 2012; Centrum voor gelijkheid van kansen en voor racismebestnijding v Firma Feryn, 2008). It has been observed that “hate speech can interfere with other human rights or operative public values [including but not limited to]: dignity, non-discrimination and equality, [effective] participation in public life, freedom of expression, association, [and] religion” (McGonagle, 2010). Furthermore, “the prevention of particular harms suffered by individual victims should also be considered: psychic harm, damage to self-esteem, inhibited self-fulfilment” among others (McGonagle, 2010, p. 421 citing Matsuda et al., 1993). Nevertheless, the process must be made with a view that the over-regulation of hateful speech also creates serious concerns that includes threatening the free exchange of ideas in a democratic society (Shaw, 2012, p. 283). By contrast, the adherence to the free marketplace of ideas theory appears not to afford a similar protection to other rights other than that of the freedom of expression (Boyle, 2001; Glendon, 1991, pp. 41–3). In stating that “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Abrams v US [Holmes, dissenting], 1919, p. 630) it seems to suggest that what would be deemed as acceptable is whatever ideology that is accepted by the strongest segment of society. Hence, the theory seems to refer to a “forum for herd mentality to direct the flow of law and to force others to follow it, regardless of whether the product is conducive to overall social wellbeing or only increases the happiness of those who dominate” (Tsesis, 2001, p. 844). It seems to lead to a virtually unregulated arena in which stronger groups are given licence to choose the statements, principles and value that would be accepted. In effect, it may create a climate, an environment in which conduct and actions that were not possible before become possible . . . where nothing is unspeakable,

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nothing is undoable . . . a market-place without rules of civil discourse is no marketplace of ideas, but a bullring. (Bickel, 1975, pp. 72–73, 6–7) The theory rests on the assumption that “whatever wins out in fair combat [is], in the struggle for existence, therefore the fit, the good, and the true” (Dewey, 1931, p. 43 cited in Tsesis, 2001, p. 844). Applying this assumption however is particularly harmful in the area of hate speech where more often than not, hate speech is directed by a member of the stronger group towards the minority groups as in the case of expressions that promote racial or ethnic hatred, religious animosity and intolerance based on sexual orientation or handicap, among others (McGonagle, 2010, p. 420). In this scenario, despite the violation of the rights of the person or group targeted, the expression would be deemed protected, being accepted in the marketplace of ideas as from a sociological or anthropological point of view it is the dominant group that controls the content of what is acceptable (Gagliardone et al., 2015, p. 15). The theory also hinges on the premise that there exists a “longstanding and pervasive distrust of government and its institutions” (Krotoszynski, 2015; Sullivan, 1998), and that “the First Amendment has also come to be associated with the support of individual rights” (Blocher, 2008, p. 826 fn 8). The import of this is that the government cannot be trusted to regulate expression. However, it should be noted that current system of human rights precisely imposes an obligation on the part of the state to protect not only the speaker but also the subject of the expression (Callamard, 2008). Lastly, the problem is complicated by the fact that hate speech rarely happens in a vacuum but rather due to pretences and stereotypes that by nature are deeply embedded in the public consciousness, that is, “without prior stigmatization and dehumanisation of targeted groups and incitement to hate incidents” (Izsák, 2015, ¶26; Delgado & Stefancic, 2014, p. 334; see Brietzke, 1997, p. 951). It has also the effect of further fostering a climate of intolerance and inequality against the minorities targeted by it (Edger, 2011, p. 128). Exacerbating this problem is the realization that resources that enable participation in the marketplace of ideas are not distributed equally. Certain people are able to speak more than others; certain people are able to speak more effectively than others; certain people are able to reach more people than others; and certain people are prevented from speaking at all. (Hartman, 1999, p. 430) Hence, in the arena that the marketplace of ideas theory forwards, expressions that would favour these minorities would have less chance of being accepted to the detriment of the protection their rights. In effect, the degree of tolerance afforded by the Philippines, following that of the US, is unequivocally drawn in favour of the right of freedom of expression. As a result, the same standard of balance between this freedom and that of others achieved in other jurisdictions is more or less not achieved.

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Recognition of the HRC and ECtHR approach in the Philippines While the treatment of the Philippine courts seems to mirror that of the SCotUS, there seems to be some recognition of the means through which the HRC, and by implication the ECtHR, handles cases concerning hate speech. The latter view has already been forwarded to be the more reasonable treatment of hate speech cases. In one case, it has been stated that: “[t]his preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations” (Chavez v Gonzales [Carpio, concurring], 2008). In MVRS, a dissenting opinion pointed out that the constitutional provision where the was stated that “[t]he State values the dignity of every human person and guarantees full respect for human rights” (1987 Philippine Constitution, Article XIII, §18[7]) was based on intent of the framers to refer to the civil and political rights embodied in the ICCPR (MVRS Publication v Islamic D’wah Council [Carpio dissenting], 2003). The opinion also cited Article 20 of the ICCPR along with paragraph 4, Article 26 of the Civil Code which makes any person who humiliates another because of his religious beliefs civilly liable. It was stated that the latter is a prohibition of advocacy of religious hatred that incites discrimination, hostility or violence, the act the Covenant seeks to curb and which the Philippine government has undertaken to declare unlawful. Lastly, since the Philippines has not enacted any special legislation to enforce the provisions of the ICCPR on the ground that existing laws are adequate to meet the requirements of the Covenant, Article 26 of the Civil Code must be considered as the law that can provide a sanction against intentional conduct, falling short of a criminal act, advocating religious hatred that incites hostility in the Philippines (ibid.). The case of Disini v Secretary of Justice dealt with the issue of the constitutionality of the Cyber-Crime Prevention Act which included, among others, the validity of the provision of providing higher penalties for defamation committed through the Internet. One of the considerations use by the Court in so ruling was Article 19 of the ICCPR. The Court stated that while the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law. (Disini v Secretary of Justice, 2014) In a recent case, the Court has commented on the free marketplace of ideas doctrine: [t]he scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality and the effect of speech. It valorises the ability of human beings to express and their necessity to relate. On the other hand, a complete guarantee must also take into consideration the effects it will have in a deliberative democracy.

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However, it also recognized, in a manner that seem to be more congruent with the views of the HRC and ECtHR, that skewed distribution of resources as well as the cultural hegemony of the majority may have the effect of drowning out the speech and the messages of those in the minority . . . social inequality does have its effect on the exercise and effect of the guarantee of free speech. Those who have more will have better access to media that reaches a wider audience than those who have less. Those who espouse the more popular ideas will have better reception than the subversive and the dissenters of society. Hence, “[t]o be really heard and understood, the marginalised view normally undergoes its own degree of struggle” (Diocese of Bacolod v COMELEC, 2015).

Conclusion While the Internet has now become an indispensable means by which individuals exercise their right to freedom of expression and information, it is not without costs. There are graver dangers in hateful expression on the Internet because of the unique characteristics of the latter with regard to the ease in transmission, relative permanency of the content, anonymity of the speaker and difficulty in regulation. The Philippines, following the US, presents the view that utmost protection must be afforded to the said freedom proceeding from the theory of a marketplace of ideas. The theory argues that by allowing the free exchange of ideas, even those the majority of persons are inclined to despise, the welfare of society as a whole is advanced. Hence, there remain only three types of speech that are proscribed: obscenity, defamation and speech that creates “clear and present danger.” By contrast, the treatment of the HRC, ECtHR, ACHPR and other domestic jurisdictions are uniform in recognizing that while the freedom of expression is vital in the achievement of other rights, it may nevertheless be restricted for the protection of public order and the protection of the rights of others. The degree of tolerance afforded by the US is unequivocally drawn in favour of the right of freedom of expression, which results to an imbalance between the two rights. The balancing done by the other view seems to be more reasonable. It protects the freedom of expression of the speaker of hateful expressions until it amounts to an extent that it already violates public order or the rights of others. If it does, under certain safeguards, it may then be restricted or prohibited provided that these regulations are valid. The issue is not whether the expression is protected but whether the exercise of such right amounts to abuse or violation of other rights and whether the restrictions in place are valid and proportional. The issue of the regulation of hate speech on the Internet is fraught with complexities. It involves the harmonization of different views regarding the right to freedom of expression of the speaker and the rights of those affected by it. Further, it involves the delicate act of balancing these rights in order to arrive at a just and equitable solution that upholds the laws, principles and values upon which they are

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founded. These complexities are evidenced by the fact that as of now, there is no general consensus as to how to deal with this problem. There are views that are advanced to be more reasonable. However, such views are not necessarily the ones that must be adhered to as they themselves are imperfect. Nonetheless, these conflicts in views provide an opportunity for advancement such that in the future, the rights involved would be better balanced, protected and upheld.

Note *

Member of the Philippine Bar; Doctor of Philosophy (Cand.) (the Australian National University); Master of Laws (the University of Sydney); Juris Doctor (University of the Philippines); Bachelor of Science in Applied Mathematics (Ateneo de Manila University).

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Domestic legislation 1987 Philippine Constitution New Civil Code (Philippines) Revised Penal Code (Philippines) S Bill no 52 (2013) (Philippines) S Bill no 1091 (2015) (Philippines) S Bill no 1492 (2017) (Philippines) S Bill no 2463 (2014) (Philippines) US Constitution

Domestic decisions Abrams v US (1919) 250 US 616 (Holmes, dissenting) (United States) ACLU v Reno (ED Pa 1996) 929 F Supp 824 (United States) Alzua v Johnson GR 7316, 31 January 1912 (Philippines) Ang Ladlad LGBT Party v COMELEC GR 190582, 8 April 2010 (Philippines)

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Beauharnais v Illinois (1952) 343 US 250 (United States) Bigelow v Virginia 421 US 809 (1975) (United States) Boos v Barry (1988) 485 US 312 (United States) Brandenburg v Ohio (1969) 395 US 444 (United States) Cantwell v Connecticut (1940) 310 US 296 (United States) Chaplinsky v New Hampshire (1942) 315 US 568 (United States) Chavez v Gonzales GR 168338 15 February 2008 (Carpio, concurring) (Philippines) City of Houston v Hill (1987) 482 US 451(United States) Cox v Louisiana (1965) 379 US 536 (United States) Dennis v US (1951) 341 US 494 (United States) Diocese of Bacolod v COMELEC GR 205728, 21 January 2015 (Philippines) Disini v Secretary of Justice, GR 203335, 11 February 2014 (Philippines) Gertz v Welch (1974) 418 US 323 (United States) Gitlow v New York (1925) 268 US 652 (United States) Hess v Indiana (1973) 414 US 105 (United States) Hustler Magazine v Falwell (1988) 485 US 46 (United States) Iglesia ni Cristo v Court of Appeals GR No 119673, 26 July 1996 (Philippines) In re: Max Shoop (1920) 19 OG 766 (Philippines) Madsen v Women’s Health Center 512 US 753 (United States) Memoirs v Massachusetts (1994) 383 US 413 (1966) (United States) Miller v California (1973) 413 US 15 (United States) MVRS v Islamic D’wah Council of the Philippines GR No 135306, 28 January 2003 (Philippines) NAACP v Claiborne Hardware Co (1982) 458 US 886 (United States) National Socialist Party of America v Village of Skokie (1977) 432 US 43 (United States) New York Times v Sullivan (1964) 376 US 254 (United States) Noto v United States (1961) 367 US 290 (United States) People v Marti GR 81561, 18 January 1991 (Philippines) Planas v Gil 67 Phil 81 (1939) (Philippines) RAV v City of St Paul (1992) 505 US 377 (United States) Red Lion Broad v FCC (1969) 395 US 367 (United States) Reno v ACLU (1997) 521 US 844 (United States) Schenck v United States (1919) 249 US 47 (United States) Simon & Schuster v Members of the New York State Crime Victims Board (1991) 502 US 105 (United States) Snyder v Phelps (2011) 131 S Ct 1207 (United States) Soriano v Laguardia GR No 164785, 29 April 2009 (Philippines) Texas v Johnson 491 US 397 (1989) (United States) United States v Bustos (1918) 37 Phil 731 (Philippines) United States v Eichman (1990) 496 US 310 (United States) United States v Perfecto (1922) 43 Phil 58 (Philippines) Virginia v Black (2003) 538 US 343 (United States) Yates v United States (1957) 354 US 298 (United States)

International documents Asma Jahangir, Interim Report of the Special Rapporteur on Freedom of Religion or Belief, 65th sess, UN Doc A/65/207 (29 July 2010)

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Committee on the Elimination of Racial Discrimination, Conclusions and recommendations of the Committee on the Elimination of Racial Discrimination, Estonia, 69th sess, UN Doc CERD/C/EST/CO/7 (19 October 2006) Committee on the Elimination of Racial Discrimination, Conclusions and recommendations of the Committee on the Elimination of Racial Discrimination, Germany, 73rd sess, UN Doc CERD/C/DEU/CO/18 (22 September 2008) Committee on the Elimination of Racial Discrimination, Summary Record of the 2196th Meeting, 81st sess, UN Doc CERD/C/SR.2196 (4 September 2012) European Commission, ‘European Commission and IT Companies announce Code of Conduct on illegal online hate speech’ (2016) Human Rights Committee, Concluding Observations on the Sixth Periodic Report of Hungary, 122nd sess, UN Doc CCPR/C/HUN/CO/6 (9 May 2018) Human Rights Committee, General Comment No 10: Article 19 (Freedom of Opinion and Expression), 19th sess, UN Doc HRI/GEN/1/Rev.1 (29 June 1983) Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80th sess, UN Doc CCPR/C/ 21/Rev.1/Add.13 (26 May 2004a) Human Rights Committee, General Comment No 34: Article 19: Freedoms of Opinion and Expression, 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) Human Rights Committee, Views: Communication No 104/1981, 18th sess, UN Doc CCPR/C/OP/2 (6 April 1983) (‘JRT v Canada’) Human Rights Committee, Views: Communication No 117/1981, 21st sess, UN Doc Supp No A/39/40 (10 April 1984) (‘MA v Italy’) Human Rights Committee, Views: Communication No 550/1993, 58th sess, UN Doc CCPR/C/58/D/550/1993 (16 December 1996) (‘Faurisson v France’) Human Rights Committee, Views: Communication No 736/1997, 60th sess, UN Doc CCPR/C/70/D/736/1997 (18 October 2000) (‘Ross v Canada’) Human Rights Committee, Views: Communication No 926/2000, 80th sess, UN Doc CCPR/C/80/D/926/2000 (19 March 2004) (‘Shin v Republic of Korea’) Human Rights Committee, Views: Communication No 1022/2001, 85th sess, UN Doc CCPR/C/85/D/1022/2001 (23 November 2005a) (‘Velichkin v Belarus’) Human Rights Committee, Views: Communication No 1128/2002, 83rd sess, UN Doc CCPR/C/83/D/1128/2002 (29 March 2005b) (‘Marques de Morais v Angola’) Human Rights Committee, Views: Communication No 1189/2003, 83rd sess, UN Doc CCPR/C/83/D/1189/2003 (31 March 2005c) (‘Fernando v Sri Lanka’) Human Rights Committee, Views: Communication No 1157/2003, 87th sess, UN Doc CCPR/C/87/D/1157/2003 (10 August 2006) (‘Coleman v Australia’) Human Rights Committee, Views: Communication No 1334/2004, 95th sess, UN Doc CCPR/C/95/D/1334/2004 (29 March 2009) (‘Mavlonov v Uzbekistan’) Human Rights Committee, Views: Communication No 1868/2009, 99th sess, UN Doc CCPR/C/99/D/1868/2009 (14 September 2010) (‘Andersen v Denmark’) Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred, UN Doc A/HRC/22/17/Add.4 (11 January 2013) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Izsák, Rita, Report of the Special Rapporteur on Minority Issues, UN Doc A/HRC/28/64 (5 January 2015)

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La Rue, Frank, Report on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 14th sess, UN Doc A/HRC/14/23 (20 April 2010) La Rue, Frank, Report on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 67th sess, UN Doc A/67/357 (7 September 2012) Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission on Human Rights, The Inter-American Legal Framework Regarding the Right to Freedom of Expression (Organization of American States, 2010) Recommendation No R (97) 20 of the Committee of Ministers to Member States on ‘Hate Speech’ (adopted 30 October 1997) Ruteere, Mutuma, Report on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance, 26th sess, UN Doc A/HRC/26/49 (6 May 2014)

International proceedings Axel Springer AG v Germany (2012) 32 BHRC 493 Bustos v Chile (Judgment) (Inter-American Court of Human Rights, Series C No 73, 5 February 2001) Centrum voor gelijkheid van kansen en voor racismebestnijding v Firma Feryn NV (C-54/ 07) [2008] 1 ECR 5187 Chauvy v France (European Court of Human Rights, Second Section, Application No 64915/01, 29 June 2004) Dicle [No 2] v Turkey (European Court of Human Rights, Fourth Section, Application No 46733/99, 11 April 2006) Donoso v Panama (Judgment) (Inter-American Court of Human Rights, Series C No 193, 27 January 2009) Editorial Board of Pravoye Delo & Shtekel v Ukraine (European Court of Human Rights, Fifth Section, Application No 33014/05, 5 May 2011) Erbakan v Turkey (European Court of Human Rights, First Section, Application No 59405/00, 6 July 2006) Erdo du v Turkey (European Court of Human Rights, Grand Chamber, Application Nos 25067/94 and 25068/94, 8 July 1999) Féret v Belgium (European Court of Human Rights, Chamber, Application No 15615/07, 16 July 2009) Gerger v Turkey [1999] ECHR 46 Giniewski v France ECHR 2006-I Glimmerveen v Netherlands (1979) 4 EHRR 260 Good v Botswana (African Commission on Human and Peoples’ Rights, No 313/05, 26 May 2010) Gündem v Turkey ECHR 2000-III Gündüz v Turkey (European Court of Human Rights, First Section, Application No 35071/ 97, 4 December 2003) Handyside v United Kingdom (European Court of Human Rights, Plenary, Application No 5493/72, 7 December 1976) Hannover v Germany [No 2] (2012) 32 BHRC 527 Honsik v Austria (Application No 25062/94) (1995) 83 DR 77 İA v Turkey (European Court of Human Rights, Second Section, Application No 42571/ 98, 13 September 2005) Jersild v Demnark (European Court of Human Rights, Grand Chamber, Application No 15890/89, 23 September 1994)

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Lawless v Ireland [No 3] (1961) 1 EHRR 15 Lehideux v France ECHR 1998-VII Le Pen v France (European Court of Human Rights, Fifth Section, Application No 18788/ 09, 20 April 2010). Leroy v France (European Court of Human Rights, Fifth Section, Application No 36109/ 03, 2 October 2008) Marais v France (Application No 31159/96) (1996) 86 DR 184 M’Bala M’Bala v France (European Court of Human Rights, Fifth Section, Application No 25239/13, 20 October 2015) Medya FM Reha Radyo v Turkey (European Court of Human Rights, Second Section, Application No 32842/02, 14 November 2006) Müller v Switzerland (European Court of Human Rights, Chamber, Application No 10737/ 84, 24 May 1988) Murphy v Ireland ECHR 2003-IX. Nur Radyo ve Televizyon v Turkey (European Court of Human Rights, Second Section, Application No 6587/03, 27 November 2007) Otto-Preminger-Institut v Austria (European Court of Human Rights, Chamber, Application No 13470/87, 20 September 1994) Perinçek v Switzerland (European Court of Human Rights, Grand Chamber, Application No 27510/08, 15 October 2015) Pfeifer v Austria (2007) 24 BHRC 167 Rekvényi v Hungary ECHR 1999-III Scanlen v Zimbabwe (African Commission on Human and Peoples’ Rights, No 297/05, 3 April 2009) Soulas v France (European Court of Human Rights, Fifth Section, Application No 15948/ 03, 10 July 2008) Sürek v Turkey [No 1] ECHR 1999-IV Tatlav v Turkey (European Court of Human Rights, Second Section, Application No 50692/99, 2 August 2006) Vejdeland v Sweden (European Court of Human Rights, Fifth Section, Application No 1813/07, 9 February 2012) Wingrove v United Kingdom ECHR 1996-V Witzsch v Germany (European Court of Human Rights, First Section, Application No 4785/03, 13 December 2005)

10 Can strategic human rights litigation complement social movements? A case study of the movement against racism and hate speech in Japan1 Ayako Hatano Introduction “You Koreans are cockroaches! Spies of North Korea, get out of Japan!” “You stink like kimchi! Go back to the Korean peninsula!,” shouted large men flying the Japanese national flag in front of the elementary school for ethnic Korean children in Kyoto on December 4, 2009. Those men are members of ultra-nationalist groups including “the Association of Citizens against the Special Privileges of Zainichi Koreans” [Zainichi Tokken wo Yurusanai Shimin no Kai] (hereafter Zaitokukukai for short) which have been staging intimidating demonstrations employing xenophobic and hateful street propaganda targeting ethnic minorities in Japan.2 As the marchers shouted through their bullhorns, hateful words were spread loudly and heard by around 150 elementary students and teachers in the school building, bringing many of the children to tears from confusion and fear (Nakamura, 2014, pp. 1–20; Human Rights Now, 2014, p. 6). The demonstration escalated and Zaitokukai and other members started to violently pull down soccer goals in the local park used by the students of the Korean school and detach school equipment such as a platform and speakers. After the first raid by those nationalist groups, there were two more attacks against the school on January 14 and March 28 in 2010, with more people shouting derogatory words unbearably loudly (Nakamura, 2014, pp. 119–131).3 Several children have since complained of stomach pains and stress as well as panicked with strong fear when they hear traumatic loud noises (Nakamura, 2014, pp. 69–71). Other students expressed fear and mistrust towards the Japanese society which generated hateful speech against them (Nakamura, 2014, pp. 69–71). The attacked Korean school (Kyoto No. 1 Korean Elementary School, hereafter “Kyoto Korean School”) filed a criminal complaint and a civil lawsuit against the demonstrators in 2010.4 This series of attacks against the Kyoto Korean School in 2009 and 2010 was an opening volley, signaling the start of openly xenophobic public demonstrations using hateful speech which have seen quick and serious growth in Japan.5 Behind hate speech against ethnic minorities, particularly against ethnic Korean residents in Japan, there is long-existing, visible and invisible prejudice and discrimination with complex social, historical and political backgrounds.6 However, this

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long-existing discrimination towards Zainichi Koreans has come to the surface in Japanese society with heightened political and societal tension between Japan and the Korean peninsula in recent years.7 Furthermore, along with the spread of the Internet, anonymous discriminatory postings against Zainichi Koreans have significantly increased (see Yamaguchi, 2013). Right-wing groups use the Internet and social media extensively and strategically for communicating ideas and organizing their movement (see Yasuda, 2012; Boyd, 2015). Heavily influenced by online discourse, nationalistic activists targeted and attempted to marginalize Zainichi Koreans and other minority groups whom they consider to be a threat to Japan (Yamaguchi, 2013, pp. 98–100). The xenophobic demonstrations and hate propaganda of Zaitokukai and other ultra-nationalist groups have spread via the Internet to thousands of people (Nakamura, 2014, p. 21; Morooka, 2013, pp. 50–61; Krieger & Kitano, 2015). The rise of Zaitokukai has led to the spread of anti-Korean rallies across Japan, which draws dozens to hundreds of supporters to the radical fringe. Since 2009, hate propaganda by Zaitokukai and other similar groups has been further increasing not only on the Internet but also on the streets of major cities in Japan (Morooka, 2013, pp. 2–4).8 Demonstrators have marched with imperialist Japanese and Nazi flags, calling Koreans parasites and criminals, and called for their death,9 which was reported to be observed more than 1,152 times between April 2012 and September 2015 (Center for Human Rights Education and Training, 2016, p. 38; see also Nikaido, 2016; Heitosupīchi Kanren Demo 1152 Ken Hōmushō Hatsu no Jittai Chōsa [Hate demonstrations are revealed 1152 cases – Ministry of Justice held a survey for the first time]. (March 30, 2016). Nihon Keizai Shimbun. Retrieved from www.nikkei.com/article/DGXLASDG30H74_Q6A330C1CR8000/).10 The Japanese authorities responded to the situation, starting an anti-hate speech campaign in 2014 and conducted a survey on the situation of hate speech in Japan in 2015 (a government official at Human Rights Protection Bureau, Ministry of Justice, personal communication, July 29, 2016). Though the government had been reluctant to take legal measures to curb hate speech, the National Diet, in 2016, enacted the first anti-hate speech law in Japan, “Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior against Persons Originating from Outside Japan (hereafter “Hate Speech Elimination Act”)”.11 Many local municipalities also developed anti-hate speech regulations and ordinances (Johnston, 2016b; Nakamura, 2019). The Kyoto Korean School cases and their progeny, intertwined with the social movement against hate speech and racism, are said to help the development of these anti-hate speech policies and legislation (a programme coordinator of the International Movement Against all forms of Discrimination and Racism (IMADR), personal communication, July 27, 2016; Suzuki (name changed) and Tanaka (name changed), project members of Anti-Racism Project (ARP), personal communication, November 24, 2016). The question then arises: were the Kyoto Korean School cases successful as strategic human rights litigation with significant positive legal and social change on the issue of racial discrimination in Japan? If so, why did the cases become so successful in causing change?

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This study, based on the framework of strategic human rights litigation in previous studies, intends to respond to these questions by analyzing how the Kyoto Korean School cases have influenced the anti-racism and counter-hate speech movement in Japan, and have contributed to the change in law, policy and society. In particular, this article examines the internalization of universal human rights norms in the cases and the subsequent movement, which may be interpreted as a way of “vernacularization” of human rights norms in the local context (Levitt & Merry, 2009).12 This article is aimed at providing a new perspective to explain the Japanese recent anti-racism movement in the framework of strategic litigation and its international implication. Currently, there are already a number of studies on the constitutional relationship between freedom of speech and hate speech regulations through legal, philosophical and sociological analysis (for legal analysis, see Morooka, 2013; Nasu, 2013; Ichikawa, 2015; Maeda, 2013).13 However, there are hardly any studies that analyze the Kyoto Korean School cases and follow anti-hate speech movements from the viewpoint of strategic human rights litigation. This empirical analysis aims to highlight the new aspects of the recent Japanese social and legal change in terms of racial discrimination. Furthermore, this analysis would provide a useful case study for the debate over strategic human rights litigation. There has been a long contentious debate about the promise and limits of litigation as a strategy for a social change. This chapter aims to examine this recent dynamic anti-racist and counter-hate movement in Japan in light of the debate over strategic human rights litigation and social movement, which can reveal a new perspective to understand the strategic litigation as a way of ensuring that the rights of discriminated minorities are considered in law, policy and practice. As for research methodology, this chapter employs socio-legal approaches using interviews with various actors in the movement including Zainichi Korean residents in Japan, government officials, lawyers, NGO staff, people in counter action against hate speech and local community organizers as well as information from newspapers and legal records. Interviews and background research were designed and conducted by the researcher from June 2016 to November 2017 and the interviews are semi-structured, conducted in the form of face-to-face interviews or through online telecommunication tools.14 The information obtained in the interviews is analyzed in the context of social mobilization or social research as this study seeks to contribute to the burgeoning field of strategic litigation. Following this Introduction as part one, part two outlines the definition and debate over strategic human rights litigation as well as hones the research questions of this chapter in light of the framework of strategic litigation. Part three overviews the Kyoto Korean School cases and analyzes its influence as well as the reasons for its “success” in the context of the strategic litigation debate. Finally, part four concludes that the strategic litigation can be a strong driver for a change in law, policy and social awareness when litigation is not solely a conservative strategy dominated by elites but is rather a cooperative process comprising of lawyers, plaintiffs, civil society, local communities and even international human rights bodies.

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Debate over strategic human rights litigation Kyoto Korean School cases as unintended strategic human rights litigation What is strategic human rights litigation? The legal community actually lacks an agreed-upon definition of strategic litigation (Barber, 2012, p. 411).15 For the purpose of this study, strategic human rights litigation is defined as the use of litigation to seek for significant changes in legislation, policies, practices, or influencing public opinion and awareness to promote and ensure human rights.16 This article deals with the Kyoto Korean School cases as strategic litigation which has contributed to a change in law, policy and social sentiment on racial discrimination in Japan. However, within this definition, a caveat should be raised in calling the litigation for the Kyoto Korean School “strategic.” The initial intention of the lawyers for the Kyoto Korean School and their clients was rather to protect the children of the school, and they did not aim to combat hate speech and racial discrimination in general or further make antihate speech legislation via taking carefully selected cases to court. It is however also true, as described later in this chapter, that the lawyers and plaintiffs acted not only to defend their safety and seek sanctions or remedies for their individual case but also to embrace their “dignity” as Zainichi Koreans and the value of “ethnic education” (see Nakamura, 2014, pp. 103–107), which shows they also fought for social values in addition to individual punishment or compensation. Furthermore, it is also true that the lawyers in this litigation used methods characteristic to strategic litigation by choosing to have a direct impact on society with media communication (Shiki Tomimasu, personal information, November 13, 2016), which in turn led to the expansion of the anti-hate speech movement and maybe further the desired impact of the litigation as well. Also, some lawyers in the litigation joined advocacy movements against hate-speech, even after the case closed. In the end, the Kyoto Korean School litigation worked as a de facto strategic litigation which led to changes in law and policy practice advancing human rights, through raising public awareness. In this sense, the Kyoto Korean School case may be categorized as “unintended strategic human rights litigation,” with the interesting characteristic of modern strategic litigation as the process and the result of the case spread throughout and beyond the country through the Internet and the impact was wider than the lawyers predicted. Pros and cons over strategic human rights litigation Though litigation is generally seen as a powerful means of advocacy, whether going to the courts helps or harms social movement and change is a burning question for scholars and practitioners siding with them (see NeJaime, 2011; Albiston, 2011). Among law and society scholars, there has been a contentious debate about the promise and limits of litigation as a strategy for social change. Proponents of litigation for social change contend that strategic litigation can have a big impact on driving social movement for change since a court decision

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normally has more strength to change legal policies. Standing up for litigation in efforts to bring about social change also provides individuals with symbolic recognition and personal dignity (see NeJaime, 2011; Albiston, 2011; Engel & Munger, 2003). Moreover, if they win, strategic litigation provides legitimacy to the movement’s claims while embarrassing the movement’s opponents, most often with financial remedies (McCann, 1994, pp. 10, 139). Also, litigation can attract public attention, creating issues around which to organize the movement in addition to networking with allies (ibid.). On the other hand, opponents raise negative aspects of strategic litigation, claiming that litigation may not always be the best or most appropriate option. A traditional critique is that strategic litigation is an elitist movement, motivated by lawyers as part of privileged groups in society (Bell, 1976, pp. 515–516). In other words, litigation is a movement of the “haves” who come out ahead in court, which shore up the existing legal system (Galanter, 1974, pp. 137–138). That often leads to a critique that litigation strategy de-radicalizes the message of the movement as the court-centred activism will legitimize the system and prevent radical challenges to the status quo by asking for a legally viable remedy rather than what movement participants want (Rosenberg, 2008, pp. 11– 12; see Albiston, 2011; Scheingold, 2004). In the end, pessimists argue that even when social movement litigation succeeds, litigation fails to produce meaningful change on the ground, resulting in legal victories which bring about only incremental change and are easily dismantled (Handler, 1978, pp. 23–24; Scheingold, 2004, pp. 5–6). The cost of litigation is another concern. Legal rights impose material and psychological costs on those who claim them (Bumiller, 1987, pp. 437–438). Some argue litigation drains resources and diverts energy from more effective and productive strategies (McCann & Silverstein, 1998, pp. 261–292; Scheingold, 2004, pp. 49–53; Rosenburg, 2008, pp. 420–429). Moreover, if lost, it results in an enormous loss of resources with no formal legal remedy. In addition to its ineffectiveness and high cost, strategic litigation is criticized for its risk of being counterproductive. Individual litigation can narrow issues and atomize collective grievances, undermining broader collective action (McCann, 1986, p. 200; Scheingold, 2004, p. 6; Rosenberg, 2008). Litigation may also mobilize opponents and counter movements, and produce a backlash (Rosenberg, 2008, pp. 155–156; see also Krieger, 2000, pp. 476–477). In the case of a loss, the strategy delegitimizes the movement or its objective and potentially denigrates the movement’s collective identity. Previous scholars provide some frameworks to organize this contentious debate about the promise and limits of litigation as a strategy for social change. Based on NeJaime’s framework of internal and external effect of strategic litigation, Albiston organizes the effects of the litigation into the typology shown in Table 1 (Albiston, 2011, p. 64). According to NeJaime (2011, pp. 988–994), internal effects have to do with the movement itself and external effects relate to the broader public as a target or observer of the movement’s strategy.17 This typology offers a checklist to look for the effects of litigation in a systematic way. This chapter, based on this analytical framework, will examine the internal and external effects of the Kyoto Korean

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Table 10.1 Effects of litigation strategies on social movements Internal Effects

External Effects

Increase bargaining power Positive effects on Raise consciousness and the movement develop oppositional Attract publicity and public consciousness (positive constitutive or attention meaning-based change as well as Provide legitimacy to the instrumental change) movement’s claims Form a collective identity Provide a legal remedy Attract financial resources Provide recognition and and participants to the dignity to individuals movement Make allies Negative effects on the movement

Drain resources and divert energy from more effective strategies Potentially demobilize participants if the litigation is unsuccessful (negative constitutive or meaningbased change as well as instrumental change)

Mobilize opponents, counter-movements and backlash Shore up the legal system; reinforce unjust system Fail to produce meaningful change on the ground, resulting in symbolic victory only

Source: Albiston (2011), p. 64, modified by the author.

School cases on the social movement against hate-speech, as well as the reasons behind it.18

The Kyoto Korean School cases Case brief After the first attack on December 21, 2009, the Kyoto Korean School filed criminal charges against Zaitokukai members and other demonstrators to the Kyoto District Public Prosecutors Office for defamation,19 forcible obstruction of business20 and damage to property.21 However, it failed in stopping the second demonstration on January 14, 2010 (Nakamura, 2014, pp. 111–125).22 The Kyoto Korean School sought the court to issue a restraining order, which was granted on March 24, 2010 (Nakamura, 2014, pp. 125–127). However, that provisional court order to ban those members of ultra-nationalist groups from demonstrating within 200 metres of the school did not stop the third hate demonstration on March 28, 2010 (Nakamura, 2014, pp. 127–131). All the demonstrations were filmed and immediately uploaded online by Zaitokukai for dissemination. On June 28, 2010, the Kyoto Korean School filed a civil lawsuit at the Kyoto District Court against the participants of these demonstrations, demanding the ban of hateful demonstrations around the school and damages

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for the past three demonstrations. On October 7, 2013, the court approved the plaintiffs’ claims and ordered the demonstrators to pay a weighted damages amounting to over 12 million yen (approximately US$110,000).23 The Kyoto District Court also ruled that the hateful rallies are not protected free speech and the group was no longer allowed to stage protests near the school.24 The court held that the actions of Zaitokukai members and other activists who shouted hate speech slogans near the school and posted video footage of the demonstrations online were “illegal” as they constitute a tort under Article 709 of the Civil Code and “racial discrimination” as defined by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The court also emphasized it should be considered to weigh the compensation that those actions were conducted with “an objective of excluding the Korean residents based on their ethnic backgrounds and hindering them from the enjoyment of human rights and basic freedom through inciting discrimination against Korean residents.”25 The court also referred to the obligation specifically addressed to national courts to ensure effective protection and remedies against racial discrimination under Article 6 of the ICERD as well as Article 2 (1) to seek for the authorities to prohibit racial discrimination by all appropriate means, including legislation. On July 8, 2014, the Osaka High Court affirmed the decision of the Kyoto District Court, stating that the principle of the ICERD should be realized even among private persons through interpreting the law in light of the purpose of the ICERD.26 The Court rejected the argument of the demonstrators which asserted that their remarks were commentaries on facts in the public interest, and therefore were not illegal, racial discrimination nor defamation. Instead, it held that the demonstraters intended to stir a discriminative consciousness with the public, which was not for the public benefit. On December 9, 2014, the Japanese Supreme Court rejected the appeal of the demonstrators and upheld the groundbreaking decision affirming the ruling of the Osaka High Court with the unanimous agreement of a panel of five Supreme Court judges. The court ruled that the Zaitokukai members and other demonstrators must pay the school an extraordinary amount of 12.26 million yen in compensation for protests that took place in 2009 and 2010.27 In a separate criminal case, some of the acts of the demonstrators were charged on August 31, 2010, for crimes of insult for their derogatory speech, damage to property as they broke the school properties in the park and forcible business obstruction on the grounds that group members had disrupted school lessons.28 In 2011, Kyoto District Court sentenced the imprisonment of members for one to two years with a four years’ stay of execution.29 This was confirmed in the Osaka High Court in 2011.30 The impact of strategic litigation What are the effects of the Kyoto Korean School case on the anti-hate speech movement, as well as policy, law, practice, jurisprudence and public sentiment? The lawsuits, particularly the first Kyoto District Court ruling in October 2013,

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seem to have had a huge impact on not only the parties but also media and society. This section analyzes the impacts of the Kyoto Korean School litigation in light of the framework of strategic litigation. Raised consciousness in the Zainichi Korean community The process of the legal actions itself has changed the consciousness of the people associated with the Kyoto Korean School, which can fall in the “positive” and “internal” effect of strategic litigation (see Table 10.1). After the first attack by Zaitokukai, teachers and people related to the Kyoto Korean School were initially unwilling to bring the case to the court (Nakamura, 2014, pp. 81–110). They expressed their distrust towards Japanese society and authorities who have discriminated against Zainichi Koreans for a long time,31 and towards the police who appeared at the school gate in all three demonstrations but did not stop them. The attitude of the police recalled their ethnic trauma in which the Japanese government and police are always confronting them, strengthening their negative attitude to the Japanese justice system. In the Kyoto Korean School cases, cause lawyers played a key role in changing the consciousness of the Zainichi Korean plaintiffs (Nakamura, 2014, pp. 81–110). Sangyun Kim, a criminal law professor in Kyoto, is a Zainichi Korean whose three sons attend the Kyoto Korean School under hateful demonstrators’ attack. He was consulted by the teachers and parents of the school on how to respond to the incident at a parent-teacher association meeting at the school. However, even Kim himself did not believe a lawsuit to be the best measure (Sangyun Kim, personal information, September 28, 2017; Nakamura, 2014, pp. 84–86). As doubters of strategic litigation point out, a legal battle might further endanger the victims and drag them into the long and exhausting legal process which may worsen their suffering in a traumatic experience. If the plaintiff lost or the accused are deemed innocent, that could provide legitimacy or recognition to the hate demonstrators as well as drain energy and financial resources from the Zainichi Korean plaintiffs. It was his friend, public cause lawyer Hiroto Endo, who pushed his back. Endo, after watching the video of the demonstrations that Zaitokukai uploaded online, insisted on the need for legal action, “We should not be silent without taking legal action. It is, of course, important to protect the Korean School and children there, but burying this incident underground is definitely not for Japanese society as well. I terribly feel sorry as Japanese, Let’s work on it together!” (Nakamura, 2014, pp. 86–90). His cooperation and strong motivation with a sense of mission led the Kyoto Korean School litigation to a strategic human rights lawsuit with a significance not only for the victims but for the society as a whole. The cause lawyers who gathered from across the country, hearing about the incidents through a lawyers’ mailing list, also encouraged the Kyoto Korean School to take legal measures. About 100 lawyers passionate about the rights of minorities, immigrants and foreigners joined the group counsel for the Kyoto Korean School on an almost pro

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bono basis. Shiki Tomimasu was one of them and later went on to become the lead counsel of the group (Nakamura, 2014, pp. 19–93). Tomimasu mentions; Most of the parents of the children in the Kyoto Korean School showed a negative response when Kim, Endo and other lawyers suggested legal measures.32 Initially, the parents and teachers at the Kyoto Korean School did not even want to listen to the lawyers, saying that ‘discrimination is always there and we cannot change it. We should endure it, keeping quiet without rocking the boat.’ (Shiki Tomimasu, personal information, November 13, 2016) However, Kim and other lawyers gradually reminded the Korean School teachers and parents that Zainichi Koreans also have “the right to learn, the right to life, and the right to live here” and persuaded them to take legal measures to protect those inherent rights (Nakamura, 2014, p. 104). One of the plaintiffs said, “We have become used to being harassed and enduring it. But it is not what things should be. Otherwise, we will not leave a good future for our kids. This is what they taught us (Nakamura, 2014, p. 104).” The process towards legal action with cause lawyers, though it was not easy and took time, began to change the consciousness of those Zainichi Korean people, who had been accustomed to being silenced in the face of continuous discrimination and suppression. The cause lawyers’ efforts convinced the Kyoto Korean School to file a criminal complaint against the demonstrators on December 21, 2009, for forcible obstruction of business, damage to property, and defamation. However, despite the filing, right-wing group members conducted the second demonstration, with more participants than the first. Even though the court issued a provisional injunction – a restraining order prohibiting Zaitokukai and other groups from conducting demonstrations around the Korean School, the Zaitokukai and other nationalist group members ignored the disposition and conducted the third demonstration (Nakamura, 2014, pp. 127–131). The fact that those legal actions were not effective in stopping the hateful rallies put the Kyoto Korean School’s teachers and parents to despair and deepened their distrust of the Japanese legal system again. However, there were two turning points in changing the mindset of the Zainichi Koreans from the Kyoto Korean School. The first point came when the police asked them if they would like to remove “defamation” from their criminal complaint in order to speed up the investigation. The counsel group explained that if they removed the complaint of defamation, the police would be able to arrest members of Zaitokukai and other demonstrators who were obviously committing forcible obstruction of business and damage to property. However, the Korean School chose to retain defamation, considering it was important to assert and protect the “dignity” of the schoolchildren rather than claiming mere material damage (Nakamura, 2014, pp. 157–159, 161–163).33

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The second turning point was when the lawyers and the Kyoto Korean School discussed whether to file a civil suit in response to the order from the court.34 The group of lawyers for the Korean School proposed to emphasize the importance of “Korean ethnic education” in their argument as the basis for claiming a large compensation for damages. The discussion made the teachers at the Korean School and the parents of the school children aware of the importance of protecting their ethnic identity including their language, culture and dignity under attack. “Their attitudes have gradually changed so that they advocate the importance of ethnic education by themselves and move to protect their dignity through the litigation,” mentioned Tomimasu (Shiki Tomimasu, personal information, November 13, 2016). The process of the lawsuit also seemed a mutual understanding process between lawyers and plaintiffs (Shiki Tomimasu, personal information, November 13, 2016). Tomimasu says; Through the process of legal actions, the lawyers themselves could deepen their understanding of Zainichi Korean culture, identity, and their situation. Thus, although it was a lawsuit initiated by the team of lawyers, in the process, we can see the lawyers and plaintiffs, Zainichi Korean and Japanese exchanged ideas expressing their feelings, which created a relationship based on trust, and brought about a change in consciousness of both parties. (Shiki Tomimasu, personal information, November 13, 2016) Zainichi Korean plaintiffs also felt they were accepted as members of Japanese society, with a new trust in justice as a result of the successful trial with the judgment clearly showing that Zainichi Koreans are also under the same rules and have the same human rights as other Japanese (Shiki Tomimasu, personal information, November 13, 2016). In light of the framework of strategic litigation, this case had a significant influence of raising awareness and consciousness of their rights, as an internal effect of strategic litigation, among plaintiffs, Zainichi Korean communities and perhaps also among the lawyers involved. The victory of the trial, of course, was important giving legitimacy to the plaintiff’s argument with remedies as an external effect of the litigation, but the discussion and process before filing the lawsuits was also essential for the people involved, in which they became deeply aware of their rights and developed a new trust in the Japanese judiciary and society. Increased media and public attention “At the start of the proceedings, the media paid almost no attention to the Kyoto Korean School case,” said Tomimasu (Shiki Tomimasu, personal information, November 13, 2016). However, the counsels for the Kyoto Korean school had a clear intention to use the media strategically and bring public attention to the problem:

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We held press conferences at every milestone of the proceedings to share the information with the press. We thought that the power of the media is necessary to alert the general public to that hate speech can be a criminal case to mobilize the police action. We wanted to change the trend or social atmosphere from one which generally permitted or tolerated such hateful street demonstrations. (Shiki Tomimasu, personal information, November 13, 2016) The case started to get more attention from the media around August 2010 when the demonstrators were finally arrested eight months after the criminal complaint of the Kyoto Korean School (Shiki Tomimasu, personal information, November 13, 2016).35 Higuchi also shows with data the arrest of Zaitokukai and other nationalist group members attracted media attention and helped spread the name of Zaitokukai in public in 2010 and media initiated the word “hate speech” associated with Zatiokukai after its big xenophobic demonstration in Tokyo in February 2013 (Higuchi, 2018, pp. 102–104). The Kyoto Korean School cases were covered in the national newspapers and broadcast on television nationwide, including most major and impactful news media, drawing public attention to the problem of hate speech (Center for Human Rights Education and Training, 2016, pp. 61–125). The data from the Ministry of Justice’s survey also shows the rulings of Kyoto Korean School case in October 2013 at the Kyoto District Court and in July 2014 at the Osaka High Court clearly attracted a huge media and public attention (Figure 10.1) (Center for Human Rights Education and Training, 2016, p. 125). The data also revealed the

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Figure 10.1 The number of hate speech news in mass media in Japan Source: Center for Human Rights Education and Training, 2016, p. 125, modified by the author

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number of news articles on hate speech rose up to 235 in 2013 and 324 in 2014 (Center for Human Rights Education and Training, 2016, p. 124). The word “hate speech” was also placed one of the top Japanese Buzzwords of 2013 (2013 U-Can Shingo Ryukogo Taisho, 2013).36 This is precisely the positive external effect of strategic litigation which attracts public attention to filings, hearings and judgments on hate speech and hate crime cases, which has brought the reality of racism to a broader audience. Rulings on the Kyoto Korean School cases also worked to validate those stories and experience of Zainichi Korean people, providing a vehicle for further empathy among people for victims of the derogatory and brutal speech, as well as a sense of “shame” and “sorrow” as Japanese citizen even among conservatives (Ryall, 2013; see Video News Network, 2013). It should be noted that the counsels of the Kyoto Korean School cases, as well as anti-hate activists, reported to foreign media, for example, through press releases at the Foreign Correspondents’ Club of Japan, which attracted the international attention to this case (see Foreign Correspondents’ Club of Japan, 2015). Influence on counter-racism movement Since the Kyoto Korean School issue became publicly known around mid-2010, Zaitokukai has encountered a backlash from the anti-hate speech movement (Krieger & Kitano, 2015). Lawyers were among the earliest actors to respond to the hate speech by issuing a statement against hate demonstrations. The Kyoto Bar Association announced the President’s Statement on Harassment against Korean schools on January 19, 2010 (Kyōto Bengoshikai, 2010). It states that the demonstrations at the Kyoto Korean School were beyond the scope which was allowed as critical speech, and the promotion or incitement of discrimination based on ethnicity or nationality, therefore, should never be permitted and that the police should take necessary measures because there is a possibility that it may be an illegal act. The Kinki Federation of Bar Associations also adopted a resolution “to criticize discrimination against Korean children in Japan” (Kinki Bengoshikai Rengōkai, 2010). The resolution adopted at the Kanto Federation of Bar Associations followed in September 2011, in which the Kyoto Korean case is mentioned as a recent serious case of discrimination and persecution against foreigners by xenophobic organizations). Stimulated by the Kyoto Korean School incidents and following xenophobic motions of surging hate groups, not only lawyers but also ordinary citizens began to take actions. Anti-racism groups emerged around 2009 in an effort to counter surging hate groups (Akedo et al., 2015, p. 8).37 Counter groups confronted Zaitokukai members at their rallies with larger counter-demonstrations, some of which have often developed into brawls.38 In September 2013, more than 2,000 people participated in “the Tokyo Anti-Discrimination March” campaigning against recent hate rallies, which was reported in major newspapers and TV channels (“Sabetsu Teppai Tōkyō Daikōshin no Daiippō Repōto”, 2013). It is noteworthy that the movement engaged more people in the

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“majority” group, not only Zainichi Koreans but also Japanese people expressing anger against hate groups and solidarity with the minorities targeted by haters. Also, many of them were not even members of civil society groups, namely “ordinary people” who had not been engaged in the human rights movement before. Influence on following judicial rulings and orders The rulings of the Kyoto Korean School case influenced the similar cases such as the Tokushima Prefectural Teachers Union case in which members of ultranationalist groups including Zaitokukai stormed the office of the Tokushima Prefectural Teachers Union and threatened the union’s officers in April 2010, alleging the union financially supported a Korean school.39 Zaitokukai and other intruders were sued over forcible obstruction of business, unlawful entry and threatening the union members.40 In April 2016, the Takamatsu High Court ordered Zaitokukai to pay more than 4 million yen (approximately US$36,000) in compensation for mental suffering of teachers and union members, which nearly doubled the amount of the compensation the primary court ruled (“High Court Doubles Damages Owed by Anti-Korean Group”, 2016; Shiki Tomimasu, personal information, November 13, 2016).41 This ruling, referring to the act of the group as “racial discrimination” under ICERD which leads to strong condemnation and illegality, clearly succeeds the rulings on Kyoto Korean School case (ibid.). The victory of the Kyoto Korean School in the legal battle induced a cascade of other racial discrimination lawsuits as it encouraged other victims and gave them hope in seeking justice in the legal system. For example, in August 2014, a Zainichi Korean woman filed two lawsuits against Zaitokukai, its former chairman and a conservative website, demanding compensation for her mental suffering from their defaming words and ethnic discrimination remarks on the Internet. She won favourable rulings in both lawsuits in 2018, on the ground of similar principles to the Kyoto Korean School case and Tokushima Teachers Union case (“Court Orders Anti-Korean Group to Compensate Woman over Hate Speech”, 2016; “Zaitokukai Heito Saiban Ri Shine San Songen Kaifuku no Tatakai”, 2018; Krieger & Kitano, 2015).42 Another Zainichi Korean woman sued the company she worked for on the ground of hate harassment at her workplace in 2015 (Takenobu, 2016).43 On March 16, 2016, in Kawasaki, a city with a large ethnic Korean population, three residents filed an application for human rights relief to the Ministry of Justice, and the Ministry in August urged the hate rally organizer not to repeat similar acts (Kanagawa Shimbun “Jidai no Shōtai” Shuzaihan, 2016, pp. 87–88, 209). This was the first nationwide case of local residents seeking assistance from the government after being targeted by hate speech in a specific area. Furthermore, the Yokohama District Court’s Kawasaki branch in June 2016 handed down a provisional injunction banning an anti-Korean group from holding demonstrations within 500 metres of the office of a citizens’ group to support Zainichi Koreans (Osaki, 2016). The judge’s strong words to determine the hate demonstrations as unconstitutional

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beyond freedom of speech and infringing on the right to live peacefully are reminiscent of the rulings of the Kyoto Korean School case (Kanagawa Shimbun “Jidai no Shōtai” Shuzaihan, 2016, p. 168). Change in law and policies According to many of the anti-hate activists interviewed, the Kyoto Korean School case and subsequent lawsuits also helped develop anti-hate speech legislation (Morooka, 2013, p. 20; a programme coordinator of IMADR, personal communication, July 27, 2016; Suzuki and Tanaka, project members of ARP, personal communication, November 24, 2016). The Japanese government has long been reluctant to regulate hate speech, even to acknowledge the existence of racial discrimination in Japan.44 However, the Kyoto District Court ruling visualized the issue of the hate speech through the judgment itself and its influence on the media and citizen movement. It became difficult for the government to deny that discriminative hate speech is rampant in 2013 when the judiciary recognized “racial discrimination” in Japan by quoting ICERD in its judgment. Since 2013, Prime Minister Shinzo Abe, Chief Cabinet Secretary Yoshihide Suga and Justice Minister Sadakazu Tanigaki have expressed concerns about the increase in hate speech.45 The Japanese Ministry of Justice posted, in November 2014, a newspaper advertisement with a big eye-catching phrase “HEITOSUPĪCHI YURUSANAI [STOP HATE SPEECH]” followed by an awareness raising campaign against hate using posters and leaflets, which was “a big leap” for the conservative ministry as there was no law or policy guidance with a definition of “hate speech,” when they started the campaign (a government official at Human Rights Protection Bureau, Ministry of Justice, personal communication, July 29, 2016). The Ministry also conducted the research in 2015–2016 on the situation of the hate speech in Japan, which revealed a stunning situation of demonstrations, parades and comments posted on the Internet with derogatory speech threatening violence against foreign residents of Japan, especially Zainichi Koreans (a government official at Human Rights Protection Bureau, Ministry of Justice, personal communication, July 29, 2016; Center for Human Rights Education and Training, 2016, pp. 1–2). Local municipalities also urged the national government to develop the law to curb hate speech. Over 230 municipalities sent comments to the government as of November 2015, seeking for strengthening the measures against hate speech including the legal development, many of which referred to the Kyoto Korean School case and its ruling to demonstrate the seriousness of the issue to justify their allegation (Jichirōren, 2016, p. 1). The Kyoto Korean School case was also cited a number of times in the parliamentary discussion over the development of anti-hate speech law. For example, Toshio Ogawa, a former justice minister and a member of the parliament, mentioned in the Committee on Judicial Affairs in the House of Councilors (Uozumi et al., 2016, p. 84): In the Kyoto Korean School case, the court ruled hate speech illegal in light of the principle of the Japanese Constitution and the ICERD. The court

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somewhat struggled in making this judgment since there was no basic law prohibiting racial discrimination. It would have been much easier for the court to rule that hate speech was illegal if there was a specific law embracing the principle that racially discriminatory statements and hate speech cannot be tolerated. With that in mind, I would say the basic principle of no tolerance against racial discrimination will be more respected and exercised in the legal rulings, policies and elsewhere if such legislation has been developed. After contentious debates on freedom of speech and political bargaining among conservative and liberal parties,46 in June 2016, the Japanese Diet enacted the Hate Speech Elimination Act.47 Although the law is decried ineffective as it does not legally ban hate speech nor impose penalties on those who engage in it as well as with the narrow scope of protection,48 the activists in the anti-hate movement welcomed it as the important first step forward to fight against racial discrimination although more needed to be done.49 The law represents progress in that Japan now has at least a symbolic law to send the message that hate speech is not acceptable in society. It also gives courts stronger grounds for issuing unfavourable rulings or imposing punishment on hate groups when their members are sued or charged under existing civil or criminal law.50 Moreover, this law will help municipal governments and police to take anti-hate measures, as they often need a legal basis to act.51 The Kyoto Korean School case also helped develop an unprecedented anti-hatespeech ordinance in Japan. In January 2016, even before the enactment of the Hate Speech Elimination Act, the Council of the City of Osaka passed the nation’s first ordinance against hate speech which came into effect in July 2016 (Higashikawa, 2017; see also Johnston, 2016a).52 On July 10, 2014, the Osaka City Mayor Hashimoto declared that he ordered relevant offices to take action to tackle the issue on hate speech, clearly saying this was triggered by the Osaka High Court ruling on the Kyoto Korean School case and emphasizing “Public intervention is necessary, and I have no tolerance of hate speech in Osaka City (Shimin Sekut Seisaku Kiko, 2018, pp. 109–110).” The Committee of experts on human rights of Osaka City started to discuss the measures against hate speech in September 2014 (see Uozumi, 2017). Uozumi points out the ruling of the Osaka High Court of the Kyoto Korean School case in July 2014 has created a social trend against hate speech which directed and pushed the discussion in the Committee and the Council towards the development of the ordinance (Uozumi, 2017, p. 4). Japan’s first ordinance aimed at deterring a broad range of hate speech based on race or ethnicity was welcomed by many local Korean residents.53 Decrease in the number of hate demonstrations According to the survey by the Ministry of Justice, the number of hateful demonstrations declined considerably in 2015 compared to the previous two years, though it cannot be said that the hate speech demonstration has completely

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120 100 80 60 40 20 0

2012 2012 2012 2013 2013 2013 2013 2014 2014 2014 2014 2015 2015 2015 4–6 7–9 10–12 1–3 4–6 7–9 10–12 1–3 4–6 7–9 10–12 1–3 4–6 7–9 Total

Tokyo

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Figure 10.2 The number of hate-related demonstrations Source: Center for Human Rights Education and Training, 2016, p. 38; Uozumi, 2017; pp. 8–9, modified by the author

calmed down as of 2016 (Center for Human Rights Education and Training, 2016, p. 35). Figure 10.2 shows that the number of hate rallies has declined after mid2013, particularly in Kansai area. It is also shown in Figure 10.2 that the number again declined after the Osaka High Court confirmed the high amount of compensation against Zaitokukai with a strong condemnation of hate speech in July 2014. Several sources point out that pressure from the courts may have played a role in restraining hate groups in the long term and the financial damage of a huge amount of compensation of the Kyoto Korean School case on hate groups in Kansai area has made their activities difficult (Shibuichi, 2016, p. 80; Uozumi, 2017, pp. 9–10). This is a typical positive external effect that strategic litigation delivers. The growth in membership of Zaitokukai has also slowed and members of hate groups are reported to have somewhat softened their rhetoric in demonstrations being afraid that they will be legally accused (Krieger & Kitano, 2015; Shibuichi, 2016, p. 80).

Analysis: why are the Korean School cases impactful? As is seen, the Kyoto Korean School cases can be evaluated as successful strategic litigation seeing the tremendous positive impacts on anti-hate movement mentioned earlier, without a huge backlash. A question arises here: why did the Kyoto Korean School cases gain the media attention, expand to a nationwide

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movement and result in new ordinance and legislation? Here are several reasons analyzed. Universalism in the Kyoto Korean School case rulings One of the reasons why the Korean School cases were powerful in pushing forward the anti-hate speech movement may be attributed to the tactical ruling of the Kyoto District Court on the civil case based on the universal value of human rights. Though the counsels for the Kyoto Korean School asserted the importance of ethnic education in their argument, the Kyoto District Court did not refer to the rights to ethnic education of Zainichi Koreans (Shiki Tomimasu, personal information, November 13, 2016).54 Instead, the court condemned the demonstrations which constitute “racial discrimination” as defined under the ICERD for the ground of the extraordinary amount of compensation (ibid.).55 This ruling solidified the ground to legitimize the argument of plaintiff side in the shape to be accepted in public opinion, uttering this issue should be considered as the matter of universal human rights, which is not only for Zainichi Korean people but important for all humankind. Tomimasu added: Thinking about the fragile situation at that time, it was probably best for us that the district court emphasized racial discrimination as a violation of international human rights law and affirmed a high amount of compensation based on the discussion. If the court focused on the right to ethnic education, at this first trial stage, the judgment could have resulted in a backlash against the Kyoto Korean School, which may have made it difficult for the plaintiffs to fight in the continuous trials. (Shiki Tomimasu, personal information, November 13, 2016) It cannot be proved if the court was worried about the backlash against the Korean people, which might have been fueled by a ruling emphasizing ethnic identity. However, this paramount ruling was in fact generally accepted favourably by a majority in society. The unusual application of the ICERD for extraordinary compensation in the ruling by the Kyoto District Court also got attention from not only among scholars and anti-discrimination NGOs but also news media, which helped to highlight hate speech issues more in public discussion and created a tailwind for the plaintiffs’ further efforts in fighting for justice (Shiki Tomimasu, personal information, November 13, 2016).56 In light of Japan’s difficulty with the domestic implementation of a number of the provisions of the treaties it has ratified, this ruling is groundbreaking.57 The Japanese judiciary had often ignored or did not take seriously arguments based on international human rights laws until the 1990s but some scholars note that this trend has changed with a recent series of racial discrimination lawsuits. Especially in the absence of domestic legislation, judges can make bold and often unprecedented applications of international law

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(Iwasawa, 1998, p. 267; Hatano, 2018; Webster, 2010). Tomimasu also agrees there is a recent change in the trend of judicial rulings: When I became a lawyer ten years ago, if I tried to make an argument based on the human rights treaties, the court never looked into the argument seriously. However, in recent years, there have been several cases in which the Supreme Court referred to international human rights treaties when they held the issue unconstitutional. That has made it easier for the judiciary to use international human rights instruments to develop its reasoning for rulings. (Shiki Tomimasu, personal information, November 13, 2016) In sum, it is important to note that the unprecedented reference of ICERD in the Kyoto District Court ruling can be seen as indicative of a change in the attitude of the Courts in Japan towards universal international human rights, at least in racial discrimination cases. Moreover, some characteristics of the Kyoto Korean School case explains why the ruling is accepted by the general public without a backlash other than from extreme right-wing groups. Among all, this is an extreme hate crime case, which is clearly illegal even under the current legal framework, as is shown in the criminal case in which haters were convicted. This clear criminality of the incident as well as the fact that violence was against children and schools attracts sympathy and attention of the general public and made it difficult for others to assert the legitimacy of Zaitokukai, which led to no visible backlash, a negative effect of strategic litigation (Shiki Tomimasu, personal information, November 13, 2016). On the other hand, it should be noted the ruling of the Kyoto Korean School case and media coverage may “de-radicalize” the arguments on the right to ethnic education of the Korean School children which have been strongly asserted by the lawyers for Korean School (see Albiston, 2011). To make the argument more general and universal to get accepted in the media and the general public in Japan may have meant at the same time to deprive the issue of its ethnic essence and did not open the Pandora’s box of the discussion over historical discrimination against the Zainichi Koreans in Japan. Tomimasu says he had ambiguous feelings when he spoke at the press conference after the “successful” ruling at the Kyoto District Court, which has left an essential discussion on ethnic education behind or procrastinated it for future discussion (Shiki Tomimasu, personal information, November 13, 2016). The unprecedented ruling of the Kyoto District Court had a big impact in creating a public groundswell against hate speech which led not only to public acceptance but also to a counter movement against Zaitokukai with the support of the majority. However, it also means leaving the in-depth issue on ethnic education and identity of Zainichi Koreans out of the centre of the discussion (Shiki Tomimasu, personal information, November 13, 2016).58 It is true that strategic litigation often results in a social change but is not necessarily best for an individual case. In this case, it seems that external effects such as remedy, public attention and social

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recognition required the sacrifice of, to a certain extent, the internal effect which centres on nurturing the collective identity of Zainichi Koreans.59 Spread of the anti-hate speech movement into majority As discussed previously, the Kyoto Korean School case rulings did not atomize the issue, as the strategic litigation critics often argue. Rather, the universality of the rulings and its process may have pushed the Japanese majority as a centre of activism, which may be different from previous strategic litigations in the 1970– 80s60 in which Zainichi Korean people played a central role and the allying Japanese worked as rather supporters.61 It is true that minority-led civil rights movements have existed in Japan throughout the twentieth century, but this recent anti-racism movement may have become different from those in more engagement of the majority under the banner of “universal human rights” or “anti-discrimination.” Resonating with the Kyoto Korean School case rulings, Japanese activists view racial discrimination as a problem that is harmful not only for Zainichi Koreans but to Japanese society as a whole and mainstreamed the anti-racism movement among the Japanese majority.62 As is mentioned, many participants of recent anti-racism activism are not conventional human rights activists, but so-called ordinary citizens who have never been involved in social movements. For example, Suzuki, the member of a local counter hate speech organization Anti-Racism Project (ARP), is a Japanese national and a non-regular employee for an IT company who had never been involved in the human rights movement before he started to engage in the recent antiracism activity in 2013. Shocked by unbearably derogatory anti-Korean demonstrations on TV and the Internet, he started to engage in a grassroots movement against racial discrimination, non-political and peaceful activities such as raising balloons with anti-discrimination messages and distributing T-shirts and flowers (Suzuki and Tanaka, project members of ARP, personal communication, November 24, 2016). The inclusive approach engaging majorities with avoiding atomizing the issue was also heard in the interview with Kang-ija Choi, a thirdgeneration Zainichi Korean resident in Sakuramoto in Kawasaki city,63 who is one of the leading figures in the local and national anti-racism advocacy as well as a local movement against racism centreing Kawasaki (Kang-ija Choi, personal information, August 21, 2017). She emphasized the need for protecting their dignity as “human” rather than asserting the rights of Zainichi Koreans apart from the majority, which resonates with the approach of the Kyoto Korean School case rulings (Kang-ija Choi, personal information, August 21, 2017). She also repeated that she would collaborate with anyone who fights against discrimination, reiterating “Everyone is an important stakeholder in the movement against hate speech and discrimination. As long as we live in the same society, no one can claim to be irrelevant to the issue (Kang-ija Choi, personal information, August 21, 2017).” In Kawasaki, people created a “Kawasaki Citizen’s Network against Hate Speech” [“Heitosupīchi wo Yurusanai” Kawasaki Shimin Nettowāku] in January 2016, a civic group in which NPOs,

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journalists, lawyers and members of the City council work together for counterhate movement as “all-Kawasaki” (Takao Yamada, a member of “Kawasaki Citizen’s Network against Hate Speech”, personal information, August 21, 2017). In addition to actively holding study sessions and awareness raising events, and advocating with the local government and lawmakers on racism, they concerted the power of local community and civic movements to conduct counter demonstrations to stop the haters from coming into their residential areas. Moreover, a new NGO, “the International Network to Overcome Hate Speech and Racism” (Heitosupīchi to Reisizumu wo Norikoeru Kokusai Nettowāku, hereinafter Norikoe Net) was established in September 2013, engaging variety of people including Zainichi Korean human rights activists, a former prime minister, lawyers, writers, journalists and academics. Norikoe Net engaged in a wide range of anti-racism activities, including sharing information an values of the Kyoto Korean School cases, with a leverage of its publicity of high profiles and celebrities. The mission statement of Norikoe Net, based on the value of universal human rights with an explicit reference to the Universal Declaration of Human Rights, resonates with the rulings of the Kyoto Korean School case which internalizes the universal human rights norms (Norikoe Net, n.d.b). Moreover, it should be noted that a large number of participants in the aforementioned “Tokyo Anti-Discrimination March” in September 2013, consist of various people including non-Koreans and those who claim no discrimination in general, called on the Japanese government to “sincerely adhere” to the ICERD, which was indicative of a spread of the anti-racism movement into majority based on universal human rights centred approach (“2,000 Rally Against Hate Speech in Tokyo’s Shinjuku”, 2016). Acceleration of the movement through the internet: “new social movement”? The Internet played a big role in accelerating the spread of activism following universalization of issues by the court. The hateful demonstration in front of the Kyoto Korean School and other hate rallies were uploaded online, spreading through social media and other online communication tools. To appeal to a wider audience, those assailants sought the extensive recording and dissemination of aggressive hate speech and demonstrations, which might have attracted some allies but created more enemies who were shocked and disgusted by hateful words directed relentlessly at minorities including women and children, and jolted them into action. The Internet also helped counter-hate groups such as Counter-Racist Action Collective (C.R.A.C.) which has often been able to mobilize hundreds of participants through the Internet when it holds counter demonstrations against hate groups while its founder says that formal members of his group actually only number in the dozens (Shibuichi, 2016, p. 77; see also text accompanying note 37 and 38). They recruited participants through Internet publicity including Facebook and Twitter, and the numbers of volunteers ballooned around early 2013. Counter hate group member Tanaka also says the participants

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of anti-racism demonstrations gather just on the day of the hate rally, responding to the call on social media, but they are not necessarily formal members of the organization (Suzuki and Tanaka, project members of ARP, personal communication, November 24, 2016). Interestingly, at least a large portion of participants in the counter demonstrations, particularly at the big cities such as Tokyo and Osaka, seems to be more spontaneous than organized or planned. The Internet helps to make it easy for ordinary people who are not usually involved in those activities to join the anti-racism movement and keeps loose ties among participants or supporters of the counter-hate groups. The phenomena resonate to what is called a “New Social Movement” that appeared around the world in recent decades that put great emphasis on bringing about social mobilization about post-material values such as human rights, distinct from the worker’s movement driven by class-based ideology (Oguma, 2016). Oguma (2016) argues that anti-nuclear movement after the earthquake, tsunami and nuclear disasters of March 2011 in Japan “had much in common with contemporaneous movements around the world, such as Occupy Wall Street” analyzing its characteristics displayed by its main actors and participants, the structure of the organizing group and its methods of mobilization. He mentions: Demonstrations on this scale last occurred in Japan half a century ago, during the 1960 struggle against the US-Japan Security Treaty (Anpo). This time, however, the rallies and demonstrations that took place all over Japan were organized by small groups of concerned individuals with no connection to existing political parties, in sharp contrast to the tightly organized anti-Anpo movement half a century earlier; and (t)he demonstration was called over the internet by a group of workers in their 20s and 30s who were involved in the precariat movement. Drawing on the style of earlier precariat movements, the demonstrations and rallies organized by this group had a “free” style and made effective use of music and design. (Oguma, 2016) This characteristic is applied to the anti-racism movement surging around 2013, in which people are not really structured nor organized but loosely connected by social media and mobilized spontaneously once the hate demonstrations are announced to happen. This loose and anonymous characteristic of the counter movement against racial discrimination seemed to make it easy for many ordinary people such as Suzuki to join and organize the movement. Collaboration of diverse actors for change in law and politics As the Kyoto Korean School cases proceeded while the hate speech movement and counter movement become violent, there became concerns and interest

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rising among lawmakers.64 One of the leading lawmakers who pushed forward this movement and a Diet effort to enact legal measures curbing hate speech was Yoshifu Arita. He is a member of the House of Councillors from the Democratic Party of Japan, who started a parliamentary panel with a dozen colleagues to introduce hate speech legislation (Higuchi, 2018, p.105). Since 2013, Arita and other concerned legislators held several meetings at the House of Councillors with human rights lawyers, civil society organizations and local activists, including Zainichi Koreans affected by hate demonstrations, and people who join in counter demonstrations, who have conducted passionate advocacy both with domestic lawmakers and with the UN human rights treaty bodies. In addition to the Norikoe-Net, Arita also works with many civic groups including Gaikokujin Jinkenhō Renrakukai [the Japan Network towards Human Rights Legislation for Non-Japanese Nationals and Ethnic Minorities] (Gaikokujin Jinkenhō Renrakukai, n.d.), in which many cause lawyers fighting racism and racial discrimination are actively engaged, and the NGO Network for the Elimination of Racial Discrimination Japan (ERD Net), a nationwide network of NGOs and individuals which reported the issue of “hate speech” including the Kyoto Korean School case to the international fora at the UN (International Movement Against All Forms of Discrimination and Racism, n.d.) and Norikoe Net.65 Arita also joined the UN treaty bodies’ sessions to review the Japanese government’s periodic reports on the implementation of the UN human rights conventions in 2014. The Kyoto Korean School case was mentioned in the NGO’s statements and reports to the UN international human rights treaty bodies with a video documenting extremely disparaging and malicious hate speech demonstrations in Japan, which gave a great shock to the Committee members (a programme coordinator of IMADR, personal communication, July 27, 2016). This combination of increased media attention and collaboration between activists, policymakers and human rights organizations led to the United Nations issuing a stern recommendation for Japan to rectify the problem of hate speech in the summer of 2014.66 According to the interview with an officer of the Human Rights Protection Bureau within the Ministry of Justice, the recognition of the rampant situation with hate and anti-hate speech rallies and the fact that the UN has been applying pressure on Japan, seem to have been one of the factors for the change in government attitude (a government official at Human Rights Protection Bureau, Ministry of Justice, personal communication, July 29, 2016). The Justice Ministry officer states that trends in society and social consensus are important for the Ministry to take measures (a government official at Human Rights Protection Bureau, Ministry of Justice, personal communication, July 29, 2016). In fact, the homepage of the Ministry of Justice on promotion activities focusing on hate speech refers to “Ways of dealing with hate speech were recommended to the government in Concluding Observations on the Sixth Periodic Report of Japan by the UN Human Rights Committee in July 201467 and Concluding Observations on the Combined Seventh to Ninth Periodic Reports of Japan by the UN Committee on the Elimination of Racial Discrimination in August of the same year”68 as the background of development of the law (Ministry of Justice, n.d. b).

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The international advocacy brought the local issue into the international realm, but also delivered the universal standard of hate speech and racial discrimination into the local movement and national lawmakers through study seminars, gatherings and collaborative advocacy (see Shaw, 2017).69 Suzuki from ARP has participated in those seminars and takes a human rights-based approach in combatting against hate speech: “Our organization is driven by the concept of protecting universal human rights. Through spreading the concept, we aim to diminish hate speech (Suzuki and Tanaka, project members of ARP, personal communication, November 24, 2016).” Kan-Ija Choi, the aforementioned Zainichi Korean advocate from Sakuramoto in Kawasaki, has been working ardently with those human rights lawyers and NGOs in local and international advocacy. She spoke at an official hearing of the Committee on Judicial Affairs at the House of Councilors to seek for legislation to prohibit hate speech, to protect everyday life in peace and with dignity in the local community, which is a core principle of human rights and humanism (Uozumi et al., 2016, p. 72). On March 31, 2016, moved by this desperate voice, lawmakers visited Sakuramoto in Kawasaki to listen to local people and victims of hate speech. (Kanagawa Shimbun “Jidai no Shōtai” Shuzaihan, 2016, pp. 112–115; Heitosupīchi Wo Yurusanai Kawasaki Shimin no Nettow ku, 2017, pp. 74–75; Uozumi et al., 2016, pp. 3, 6). Even a notably conservative politician from the Liberal Democratic Party mentioned after the visit, with a strong tone of determination: I understand Zainichi Korean people want to live as they are, not hiding their ethnic roots. This is a common ground for everyone, not only Zainichi Korean but also all Japanese and all people. In our society, it is intolerable to neglect the acts to harm the dignity as human being. (Kanagawa Shimbun “Jidai no Shōtai” Shuzaihan, 2016, pp. 115–116)70 On April 8, 2016, a week after the visit, the ruling coalition of the Liberal Democratic Party and the Komeito Party submitted “the Draft Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior against Persons Originating from Outside Japan (Uozumi et al., 2016, p. 4).” Though the law itself is criticized as toothless and narrow, an NGO emphasizes: It was the outcome of civil society’s passionate advocacy that the hate speech legislation comes with supplementary resolutions which refer to the ICERD, and urge the government to take measures to restrain online acts to escalate discriminatory words and behavior as well. (a programme coordinator of IMADR, July 27, 2016) It shows that behind the successful influence of the Kyoto Korean School cases were ardent advocacy efforts and a surging anti-racism movement, which was realized with the collaborative network among diverse stakeholders bringing

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globally generated ideas and strategies to the local level, namely vernacularizing universal human rights on the grounds (see Levitt & Merry, 2009).

Conclusion Strategic litigation is about situating individual client interests or human rights within larger social goals, or about creating progressive jurisprudence, instigating reform of laws and policies, which advances human rights and rebalances the historic or systematic injustices. It also aims to enable individuals to seek remedies for human rights violations and empower people who have been victims of human rights abuses. However, the law and society debate over litigation and social change sheds light on both the positive and the negative sides of strategic litigation. On one hand, the positive view emphasizes that strategic litigation can change social attitudes and raise issues around which to organize a movement by attracting publicity, media attention and participants to a movement. On the other hand, critics point out the limits of individual litigation as a strategy for social change and even its negative effects, arguing that legal victories bring no real change and individual litigation can narrow issues and atomize collective grievances, undermining broader collective action. This empirical socio-legal analysis examines the Kyoto Korean School cases in the dynamic process of the anti-hate speech and racism movement in Japan as an example of successful strategic human rights litigation, aiming to propose a broader framework through which we understand strategic litigation, focusing on the interaction between domestic and international laws and advocacy by civil society. The first part of this chapter examines the effect of the Kyoto Korean School case in light of strategic litigation framework. This study has shown that the Kyoto Korean School cases had an enormous positive impact on the antiracism movement in Japan including raising consciousness among the plaintiffs and public awareness without a big backlash and led to the enactment of the very first anti-hate speech law and a municipal ordinance, with the support of increased media attention and public opinion against hate speech. In this case, those effects were not originally pursued, but grew out of not only the judicial decisions but also of the process for seeking justice, thus calling the cases “unintended strategic litigation.” It was a transformative process for both plaintiffs and lawyers, namely an iterative and interactive process of human rights norms diffusion, rather than top-down. This chapter also analyzes the reasons behind this “success.” First, the rulings of the Kyoto Korean School case, which condemned hateful demonstrations as “racial discrimination” under the international human rights treaty, framed the issue as a matter of universal concern which affects Japanese society as a whole. The rulings were accepted by the majority in Japanese society without inducing a backlash. Unprecedented application of the international human rights convention was highlighted by media, while some extreme characters of

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this hate crime case against elementary school children also attracted media attention. This brought the long-standing efforts of civil society groups and activists to vernacularize the universal human rights norms into the attention of majorities, which has been spread in Japanese society with the historic effort of civic networks of diverse actors, not only of lawyers but also of civil society organizations, local communities and a massive number of individuals who joined in counter movement. It pushed a majority of the society into becoming major actors of the expanding anti-racism movement and also brought the Kyoto Korean School cases, its process of proceedings and the subsequent results to domestic and international attention. The Internet played a key role to mobilize people in transforming anti-hate speech activism into a nationwide movement against racial discrimination, which makes the movement somewhat different from previous minority-led movements. In this sense, the recent anti-racism movement in Japan is not only a leftist elite or professional activist movement but also involves more “ordinary” people connected loosely via the Internet, as well as the local community including Zainichi Korean people to seek to live together with everyone in society. The combination of the bottom-up human rights movement based on the locality and the international and national advocacy of leftist groups engaging lawmakers have provided an impetus in advancing legal development against hate speech. The culmination of activists’ efforts, in collaboration with policymakers and human rights workers with the support of public opinion, came in May 2016, when Japan passed its first law against hate speech. To conclude, this analysis shows the Kyoto Korean School cases were successful as unintended strategic human rights litigation since the multiple stakeholders brought a universal human rights ideology embedded in the rulings into a wide range of communities in society. The universal idea of all humans having rights to be free from hate speech and racial discrimination regardless of ethnicity gave legitimacy for a social movement against hate speech and racism. Consequently, in this case, the litigation is not a conservative strategy monopolized by elites but a dynamic process involving diverse actors including lawyers, civil society organizations, local communities, individual activists, journalists, lawmakers and even international human rights organizations, where the purpose of social movements is complemented by legal means. Though the scope of the analysis of this article is limited to overviewing the social causes and effects of the Kyoto Korean School cases as strategic human rights litigation, I hope this analysis marks a step forward in the nation’s longstalled efforts to curb racial discrimination and will inspire the discussion over strategic litigation and social mobilization in a global context.

Acknowledgment The author is immensely thankful to the editors and all collaborators for their helpful comments and revisions, and especially to those who kindly cooperated for the interviews for sharing insightful experiences and thoughts. The author

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also expresses deepest appreciation to the Davis Projects for Peace and the Asia Leadership Fellow Program by the Japan Foundation and the International House of Japan, as well as the Grants-in-Aid for Scientific Research (A) of the Japan Society for the Promotion of Science, 2016–2021: Network Governance for Access to Justice in East Asia, who generously supported this research. All opinions and errors remain strictly my own.

Notes 1 This chapter was initially published in 14 U. Pa. Asian L. Rev. 228 (2019) and modified for this publication. 2 Zaitokukai is an ultra-nationalist civic group in Japan, which was established in 2007 for protesting alleged “special privileges” afforded to ethnic Korean residents in Japan. The precise number of Zaitokukai members is unknown but it is claimed that it has 14,000 members in their website as of April 2014 (Morooka, 2013, pp. 4–7; Nakamura, 2014, pp. 20–22. See also Yasuda, 2012). Zainichi, a term that literally means “residing in Japan,” is commonly shorthand for ethnic Koreans who came or were brought from the Korean peninsula to Japan during Japan’s colonial rule, and their descendants, while the scope of Zainichi Koreans varies depending on contexts. Zainichi Koreans are usually with permanent residency status in Japan or have Japanese citizenship. More than 310,000 Zainichi Koreans with permanent residency status reside in Japan as of December 2018 (National Statistics Center, 2019). Zainichi Koreans established Korean schools in Japan to teach Korean history, language and culture to their children to maintain their ethnic identity (see Lee, 2012). This paper uses Zainichi Koreans in broad terms which include both those who have retained either their Joseon or South Korean nationalities and Japanese citizens of Korean descent who acquired Japanese nationality by naturalization or by birth. 3 There were around 40 people in the second demonstration on January 14, 2010 and around 100 participants in the third demonstration on March 28, 2010. 4 For criminal cases, see Kyōto Chihō Saibansho [Kyoto Dist. Ct.], April 21, 2011, Hei 22(wa) no. 1257 and Hei 22 (wa) no. 1641; Ōsaka Kōtō Saibansho [Osaka High Ct.], Oct. 28, 2011, Hei 23 (u) no. 788; Saikō Saibansho [Sup. Ct.], Feb. 23, 2012, Hei (a) no. 2009. For civil cases, see Kyōto Chihō Saibansho [Kyoto Dist. Ct.], Oct. 7, 2013, Hei 22 (wa) no. 2655, 2208 Hanrei Jiho [Hanji] 74 (Japan); Ōsaka Kōtō Saibansho [Osaka High Ct], July 8, 2014, Heisei 25 (ne) no. 3235, 2232 Hanrei Jiho [Hanji] 34 (Japan); Saikō Saibansho [Sup. Ct.], Dec. 9, 2014, Hei 26 (o) no. 1539, Hei 26 (ju) no. 1974. In this paper, “the Kyoto Korean School case” mainly refers to the civil case when it is in a singular form. 5 While there is no established definition of hate speech, for the purpose of this study, hate speech is defined as a manifestation of discrimination, hostility or hatred on the basis of race, ethnicity, language, religion, nationality, origin, gender and other identities, instigation thereto, and instigation of violence. See G.A. Res. 260 (III), the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) (Dec. 9, 1948). G.A. Res. 2106 (XX), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (Dec. 21, 1965). G.A. Res. 2200A (XXI), the International Covenant on Civil and Political Rights (ICCPR) (Dec. 16, 1966). UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation No. 35: Combating Racist Hate Speech (Sep. 26, 2013). This paper focuses on discriminatory expression and behaviour aimed at specific ethnic groups or nationalities with wider definition of “racial discrimination” under Article 1 of the ICERD. While the immediate target of hate speech may be a single person or a group, its harm can extend to entire communities by promoting

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discrimination and intolerance in society. For harmful effects of hate speech, see Waldron (2012) and Morooka (2013, pp. 50–61). Japanese NGOs also report that the hate propaganda against the Kyoto Korean School changed children’s attitudes about their identities negatively with long-standing trauma (Human Rights Now, 2014). Since the opening decade of the twentieth century when Japan seized Korea as a colony, there have been a number of hate speech and hate crimes against ethnic Koreans as well as discriminations in various areas such as employment, residency, marriage and financial services (see Itagaki, 2015). It includes the incidents such as Korean supporters booing the Japanese team in the 2002 Korea-Japan Soccer World Cup and North Korean abductions of Japanese citizens recognized in 2002, which seemed to influence to raise popular nationalism in Japan. A comic book with strong anti-Korean content published in 2005 became a big seller and was followed by a series of anti-Korean xenophobic publications, which led to create anti-Korean social sentiments in wider public discourse. This trend was strengthened by the recurring territorial dispute between Japan and South Korea in 2012 and a number of North Korean missile tests since 2012, as well as an issue over the exclusion of Korean schools from the tuition-waiver programme after the conservative government took power in 2012 (Morooka, 2013, pp. 4–5; Sakamoto & Allen, 2007). According to Morooka (2013, pp. 2–4), recent xenophobic activism that became a social problem differs from the past in that people who had posted discriminative statements online started to take a collective action publicly on the street. They also uploaded videos of recorded demonstrations on the Internet, to reproduce and spread their xenophobic claims, and continuously incite discrimination. In those demonstrations, they mobilized more than 200 people at each time in Osaka and Tokyo. In Osaka, a 14-year-old Japanese girl screamed that she hated Koreans and that they should all be killed in a massacre like the Nanjing Atrocities, prompting cheers of approval by members and followers of Zaitokukai. The video of her shouting was subtitled in several languages and posted on YouTube, generating shock and anger in Japan and abroad (Johnston, 2013). It is pointed out to be likely “a conservative estimate, and the number of instances of lower levels or more individual forms of hate speech is likely several multiples of this number” (Martin, 2018, p. 462). “Unfair discriminatory speech and behaviour against persons originating from outside Japan” in the act is considered to be equivalent to what is known as “hate speech” as indicated in the website of Japanese Ministry of Justice (n.d. a). Levitt and Merry (2009) called the process of appropriation and local adoption of globally generated ideas and strategies “vernacularization”. A number of studies were also conducted on hate groups and anti-hate groups in Japan (see Yamaguchi, 2013; Yasuda, 2012; Higuchi, 2014; Akedo et al., 2015; Shibuichi, 2016). There are more than 20 interviews which were conducted in formal and informal ways but this chapter mainly refers to the information obtained from the following interviews: an interview with a programme coordinator of the International Movement Against all forms of Discrimination and Racism (IMADR, international human rights NGO), on July 27, 2016; an interview with a government official at Human Rights Protection Bureau, Ministry of Justice on July 29, 2016; an interview with Shiki Tomimasu, lead counsel of the group of lawyers for the Kyoto Korean School, on November 13, 2016; an interview with Suzuki (name changed) and Tanaka (name changed), project members of Anti-Racism Project (ARP, counter-racism civic group) on November 24, 2016; an interview with Kang-ija Choi, a Zainichi Korean living in Kawasaki on August 21, 2017; an interview with Takao Yamada, a member of “Kawasaki Citizen’s Network against Hate Speech” on August 21, 2017; an interview with Sangyun Kim, criminal law scholar and a parent of Kyoto Korean School students, on September 28, 2017.

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15 However, this paper does not aim to further explore the definition or concept of strategic litigation. 16 Those litigations for policy formulation in Japan may include the women’s rights movement and litigations in the 1950s–80s; the eruption of anti-pollution protest and four big pollution diseases cases since the 1960s and other environmental litigations; and the anti-discrimination movement by Buraku people (a historically discriminated outcast group in Japan) (see Upham, 1989). A recent example may include a variety of criminal and civil lawsuits which have been brought to justice following the earthquake, Tsunami and the nuclear disaster in Fukushima in 2011. 17 As external actors, this chapter mainly examines the general public, civil society organizations, counter-movements and the government. 18 The evaluation of the value and impact of strategic litigation is another important issue (see Open Society Justice Initiative, 2016; Montell, 2015; Socio-Economic Rights Institute of South Africa, 2015). 19 Keihō [Pen. C.] art. 230(1) (Japan), translated by Japanese Law Translation, www. japaneselawtranslation.go.jp/ [https://perma.cc/C7C5-C8N4]: A person who defames another by alleging facts in public shall, regardless of whether such facts are true or false, be punished by imprisonment with or without work for not more than three years or a fine of not more than 500,000 yen. This complaint was changed to “insult (Keiho [Pen. C.] art. 231(Japan))” later. 20 Keihō [Pen. C.] art. 234 (Japan), translated by Japanese Law Translation, www.japane selawtranslation.go.jp/ [https://perma.cc/4CED-88MW]: A person who obstructs the business of another by force shall be dealt with in the same manner as prescribed under the preceding Article. 21 Keihō [Pen. C.] art. 261 (Japan), translated by Japanese Law Translation, www.japa neselawtranslation.go.jp/ [https://perma.cc/QE5R-KEVH]: A person who damages or injures property not prescribed under the preceding three Articles shall be punished by imprisonment with work for not more than three years, a fine of not more than 300,000 yen or a petty fine. The criminal proceeding ended up at the Supreme Court, in which Kyoto Korean School prevailed in 2012. 22 Around 40 demonstrators and more than 100 police officers surrounded the school. The police did not stop the demonstrations, ditto in the third demonstration. 23 See Kyōto Chihō Saibansho [Kyoto District Ct.] Oct. 7, 2013, Heisei 22 (wa) no. 2655, 2208 Hanrei jiho [Hanji] 74 (Japan). 24 An injunction was issued against the defendants’ street propaganda activities within 200 metres of the school. 25 See Kyōto Chihō Saibansho [Kyoto District Ct.] Oct. 7, 2013, Heisei 22 (wa) no. 2655, 2208 Hanrei jiho [Hanji] 74 (Japan); Minpou [Civ. C.] art. 709 (Japan), translated by Japanese Law Translation, www.japaneselawtranslation.go.jp/law/detail/? id=2057&vm=&re= [https://perma.cc/5XHE-MGFK]: A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence; Article 1(1) of the ICERD. Japan ratified ICERD in 1995. 26 See Ōsaka Kōtō Saibansho [Osaka High Ct.] Jul. 8, 2014, Heisei 25 (ne) no. 3235, 2232 Hanrei jiho [Hanji] 34 (Japan). It denied the direct application of the ICERD to private entities (see Hatano, 2018). 27 See Saikō Saibansho [Sup. Ct.] Dec. 9, 2014, Hei 26 (o) no. 1539 (Japan), available at LEX/DB 25505638. Saikou Saibansho [Sup. Ct.] Dec. 9, 2014, Hei 26 (ju) no. 1974 (Japan), available at LEX/DB 25505638. 28 These criminal charges were examined jointly with the similar case of the same people in Tokushima prefecture in which Zaitokukai targeted the teacher’s union providing financial aid to Korean Schools in Shikoku. For this case, they were also charged and convicted for breaking into a building. See Keihō [Pen. C.] art. 130, translated by Japanese Law Translation, www.japaneselawtranslation.go.jp/ [https://perma.cc/ 3ZQD-N4UN]: A person who, without justifiable grounds, breaks into a residence of

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another person or into the premises, building or vessel guarded by another person, or who refuses to leave such a place upon demand shall be punished by imprisonment with work for not more than three years or a fine of not more than 100,000 yen. See Kyōto Chihō Saibansho [Kyoto Dist. Ct.], Apr. 21, 2011, Hei 22(wa) no. 1257 and Hei 22 (wa) no. 1641. See Ōsaka Kōtō Saibansho [Osaka High Ct.], Oct. 28, 2011, Hei 23 (u) no. 788. One of the suspects appealed to the Supreme Court but the appeal was rejected. The probations of some demonstrators were revoked when they were convicted in another hate demonstration case against Rohto Pharmaceutics in 2012 and 2013. Among Zainichi Korean people, there has been a widespread distrust of the Japanese justice system, nurtured and strengthened by long-standing discrimination, a series of unfavourable rulings against the rights of Zainichi Koreans. For example, in the 1980s, there was a law which stated that Korean residents in Japan had to be fingerprinted, under which Zainichi Koreans had to reveal their identity to the public. A Zainichi Korean man sued the Japanese government, alleging the law violated his constitutional rights. Though the Supreme Court of Japan held that the law did not violate the Constitution, there was a big movement against the fingerprinting and the law was subsequently repealed. (See Saikō Saibansho [Sup. Ct] Dec. 15, 1995, Heisei 2 (a) no. 848, 49(10) Saiko Saibansho keiji hanreishu [Keishu] 842 (Japan).) It was also hard for Zainichi Koreans to gain employment, especially as public employees since Japan limits public employment to Japanese nationals. Although a few opportunities are open to Zainichi Koreans to work as civil servants now, they cannot take managerial positions. In 2005, in a case in which a Zainichi woman was rejected for a managerial position exam at a public health centre, even though she was born and had lived all her life in Japan, the Supreme Court held that it is constitutional for local governments to make managerial positions only available to Japanese nationals. (See Saikō Saibansho [Sup. Ct.] Jan. 26, 1998, Heisei 10 (gyo tsu) no. 93, 59(1) Saiko Saibansho minji hanreishu [Minshu] 128 (Japan).) Moreover, since the 1980s, every time Japan’s relations with North Korea grew tense, there have been many incidents of verbal abuse, harassment and violence against Korean schools. An example from the mid-1990s is an incident where female students in Korean schools across Japan were attacked and had their ethnic school uniforms cut with box-cutters. Most recently, the withdrawal of the governmental subsidies and exclusion of the Korean Schools from the tuition waiver programme become an issue, as well as the exclusion of Zainichi Koreans from the pension scheme. Parents of the children in the Kyoto Korean School were conscious of protecting their children and started a mailing list for information sharing and conducted vigilance patrols, but they still hesitated to take a legal action (Nakamura, 2014, p. 104). It was, however, “downgraded” by the prosecutor to a charge of “insult” (Penal Code Art.231), an obviously lesser crime than defamation. (See Keiho [Penal Code] art. 231 (Japan), translated in Japanese Law Translation, www.japaneselawtranslation.go.jp/ [https://perma.cc/4CED-88MW]: A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanour imprisonment without work or a petty fine.) The Korean School received a prosecution order from the court then. If one who requests a temporary proposition to the court gets a prosecution order, one should decide whether to file a lawsuit within a certain period (usually within about a month). They were also indicted for their acts against Tokushima Prefectural Teachers union, as stated in the following sections of this chapter. The awards are granted for the terms that provide a unique insight into the nation’s social trends, as well as the political, business and sports news of the year. Anti-racism groups in this study are different from civil rights groups. Maroney (1998, p. 571) describes anti-racism groups “typically have been organized in direct response

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to hate crimes against their communities and a perceived systemic bias against victims.” For example, “Racist Shibaki-tai [The Corps to Bash Racists]” which changed the name later to “C.R.A.C.” after the acronym for Counter-Racist Action Collective, is one of the biggest counter hate groups which often takes aggressive measures to counter hate speech demonstrations (Shibuichi, 2016, p. 76). They insulted the officials over a loudspeaker and physically harassed one of them, with video of the incident being posted on the Internet. Both criminal and civil suits have been raised by Tokushima Prefectural Teachers Union against the intruders (see Tomimasu, 2015). Zaitokukai and other members were sued in both civil and criminal cases in regard to this incident at Tokushima Prefectural Teachers Union. In criminal case, they were convicted in Tokushima Chihō Saibansho [Tokushima Dist. Ct.] Dec. 1, 2010; Kyoto Chiho Saibansho [Kyoto Dist. Ct.], April 21, 2011, Hei 22(wa) no. 1257 and Hei 22 (wa) no. 1641. However, Tomimasu, who also joined the group of counsels for Tokushima Teachers Union, criticizes those judgements, as well as the primary decision of the civil case that did not weigh the grave importance of racial discrimination in this case (Tokushima Chihou Saibansho [Tokushima Dist. Ct.] Mar. 27, 2013, Hei 25 (wa) no. 282) issued before the Kyoto Korean School case was confirmed at the Supreme Court (Tomimasu, 2015). See Takamatsu Kōtō Saibansho [Takamatsu High Ct.], Apr. 25, 2016, Hei 27(ne) no.144, no.254, which is confirmed at the decision of Supreme Court on November 1, 2016. See Osaka Chihō Saibansho [Osaka Dist. Ct.] Sept. 27, 2016 (Japan), Osaka Koto Saibansho [Osaka High Ct.] June 19, 2017 (Japan) and Saiko Saibansho [Sup. Court] Nov. 29, 2017 (Japan) for a case against Zaitokukai and its former chairman; Osaka Chihō Saibansho [Osaka Dist. Ct.] Nov.16, 2017 (Japan), Osaka Koto Saibansho [Osaka High Ct.] June 28, 2018 (Japan) and Saiko Saibansho [Sup. Court] Dec.11, 2018 (Japan) for a lawsuit against a conservative website. The case is still ongoing as of January 2020. According to the report by the Japanese government submitted to the CERD in 2013, the Government of Japan does not believe that, in present-day Japan, racist thoughts are disseminated and racial discrimination is incited, to the extent that . . . legislation to impose punishment against dissemination of racist thoughts and other acts should be considered even at the risk of unduly stifling legitimate speech. (Government of Japan, 2013)

45 On May 7, 2013, in the Upper House, Prime Minister Abe said these demonstrations were “regrettable.” Justice Minister Taniguchi used the same word. Chief Cabinet Secretary Suga also said these were “not good things (Johnston, 2016).” 46 For the political process of the development of anti-hate speech law, see Higuchi (2018). 47 The law has been passed in the National Diet on May 24, 2016 and enacted on June 3, 2016 (Uozumi et al., 2016). 48 The critics say its definition of victim protected by the law is too narrow as the law is written specifically to protect legal residents of overseas origin and their descendants, and does not include other ethnic minorities in Japan (a programme coordinator of IMADR, personal communication, July 27, 2016). See also Martin (2018, pp. 466– 470; Kotani, 2017a, 2017b). 49 A programme coordinator of IMADR, anti-discrimination NGO, mentioned “This is the first, big step toward a more holistic anti-discriminatory law. We will continue our movement to aim for revision of the law.” She also mentions the supplementary

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resolutions by the Committee of Judicial Affairs of both the upper and lower houses of the Diet are one of their achievements of advocacy for human rights. The supplementary resolutions declare that any form of discriminatory speech and behaviour shall be appropriately dealt with in view of the International Convention on the Elimination of All Forms of Racial Discrimination (a programme coordinator of the International Movement Against all forms of Discrimination and Racism (IMADR), personal communication, July 27, 2016). In fact, on June 2, 2016, the Kawasaki Branch of Yokohama District Court also issued a first-ever provisional injunction preventing an anti-Korean activist from holding rallies, referring to the Hate Speech Elimination Act. Yokohama Chihō Saibansho Kawasaki Shibu [Yokohama Dist. Ct., Kawasaki Branch] June 2, 2016, Hei 28 (wo) no. 42 (Japan); see also Osaki (2016). Kotani (2017b, p. 619) also argues, “Despite its unenforceable nature, the Act seems to have brought about some changes in the government’s stance regarding racist hate speech since its enactment.” Many local governments developed or started to develop anti-hate speech guidelines and ordinances including Osaka, Kawasaki, Setagaya, Kyoto, Tokyo, Nagoya and Kobe as of 2018. Osaka-shi Heitosupīchi he no Taisho ni kansuru Jourei [Osaka City Ordinance on Treatment of Hate Speech], Osaka City Ordinance No. 1 of 2016 (Japan). Osaka ordinance covers a broader area of speech; not only words used at demonstrations and in public speeches, but also online dissemination of such activities. The ordinance sets the expert panel to review the hate speech complaint and to disclose the names of individuals or groups judged to have engaged in hate-speech activities. Under the ordinance, the city can also ask internet service providers to delete the offending content and take other steps to prevent posting footage of hatespeech rallies and discriminatory remarks on social media. Local officials also have broad discretion in interpreting the meaning of public safety and can reject the use of public facilities by hate-speech propagators for parades or rallies (Johnston, 2016). In fact, there are several barriers in national laws to bar the implementation of the ordinance. The Osaka city mayor expressed his views on April 22, 2018, that the city requested the government to revise the related laws so that the government’s support for municipalities could curb hate speech (Yoshikawa & Tadama, 2018). See Kyoto Chihō Saibansho [Kyoto Dist. Ct.] Oct. 7, 2013, Heisei 22 (wa) no. 2655, 2208 Hanrei jiho [Hanji] 74 (Japan). Id. Tomimasu also mentions “the unprecedented judgment raised the news value, as it seems after all rather ‘directly’ applied ICERD. If it did not refer to the international human rights law, it would not be picked up by national news media” (Shiki Tomimasu, personal information, November 13, 2016). Judicial tendency to dismiss claims based on international human rights laws has been pointed out in previous cases (see Iwasawa, 1998; Hatano, 2018). Osaka High Court has referred to the importance on the ethnic education, which was not touched upon in the primary ruling. Tomimasu mentions that the Kyoto District Court ruling solidified the foundation of the discussion and sentiment for the Osaka Hight Court ruling to be also accepted in the society (Shiki Tomimasu, personal information, November 13, 2016). However, the issue of ethnic education was not fully discussed in the public sphere. Later, in another case in which Osaka Korean High School sought to annul the government’s decision to exclude it from the tuitionfree high school education programme, the court found the government’s exclusion of Korean High School was legal in 2018 (Japan Times, 2018). While Tomimasu asserts the importance of the ethnic education and identity, he also states “As the very first step, it is very important to create an environment for ethnic minorities including Korean people to raise their voice as accepted member of society

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and empower their argument even in the long run” (Tomimasu, 2013; Shiki Tomimasu, personal information, November 13, 2016). One Zainichi Korean sued the Hitachi conglomerate in 1970 for cancelling his recruitment after they discovered his ancestry. On June 19, 1974, the Yokohama District Court ruled the case for his favour. In the other case, a Zainichi woman filed a suit to demand a retraction of the government’s refusal to issue her a re-entry permit after she refused to be fingerprinted in 1986 (Okunuki, 2015; “Supreme Court Dismisses Korean’s Fingerprint Refusal Case”, 1998). Cho also argues that since around 2013 the issue of racism has been more recognized as a problem in Japanese, a new characteristic of the anti-racism movement after 2013 (Akedo et al., 2015, pp. 55–64). It may be noteworthy that many anti-racism counter activists also engaged in antinuclear protestors after the Tsunami and the nuclear accidents in 2011 in Fukushima. Shaw argues that Fukushima incidents triggered an awakened consciousness for many Japanese people with a vision of shared vulnerability that includes foreigners, sexual minorities, people suffering from life-threatening and chronic illnesses, and those forced to live near or exposed to nuclear power plants (Shaw, 2017). Sakuramoto in Kawasaki City is an area where many Zainichi Korean people reside for long and is often targeted by hate demonstrators. Several scholars emphasize the role of party politics on agenda setting for policy and legal measures against hate speech (see Higuchi, 2018; Akedo, 2016, pp. 182–192). As of July 10, 2013, 85 organizations and 30 individuals are members of ERD network. IMADR is a facilitating organization of the network (see NGO Network for the Elimination of Racial Discrimination Japan (ERD Net), n.d.; a programme coordinator of IMADR, personal communication, July 27, 2016). Human Rights Committee, Concluding Observation on the Sixth Periodic Rep. of Japan, UN. Doc. CCPR/C/JPN/CO/6 (2014). Comm. on the Elimination of Racial Discrimination, Concluding Observation on the Combined Seventh to Ninth Periodic Rep. of Japan, UN. Doc. CERD/C/JPN/CO/7–9 (2014). The Kyoto Korean School cases were mentioned in the shadow reports to the UN international human rights treaty bodies and discussions in the Committees. Human Rights Comm, supra note 67 or Concluding Observation on the Sixth Periodic Rep. of Japan, UN. Doc. CCPR/C/JPN/CO/6 (2014). On July 23, 2014, the UN Human Rights Committee, having examined the Japanese government’s report, adopted its concluding observations (on the sixth periodic report of Japan), stating: The State (Japan, hereinafter the same) should prohibit all propaganda advocating racial superiority or hatred that incited discrimination, hostility or violence, and should prohibit demonstrations that are intended to disseminate such propaganda. The State party should also allocate sufficient resources for awarenessraising campaigns against racism and increase its efforts to ensure that judges, prosecutors, and police officials are trained to detect hate and racially motivated crimes. The State party should also take all necessary steps to prevent racist attack to ensure that the alleged perpetrators are thoroughly investigated, prosecuted and, if convicted, punished with appropriate sanctions.

In its recommendations to Japan, the committee noted that hate speech and other behaviour inciting racial violence and hatred during rallies and in the media, including the Internet, are “not always properly investigated and prosecuted” by Japanese authorities. 68 The Committee of Racial Discrimination, supra note 67 or Observation on the Combined Seventh to Ninth Periodic Rep. of Japan, UN. Doc. CERD/C/JPN/CO/7-9 (2014). The U.N. Committee on the Elimination of Racial Discrimination (CERD)

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in its concluding observations to the Japanese government (on the combined seventh to ninth periodic reports of Japan), adopted on August 29, 2014, states: The Committee encourages the State party to its position again and consider withdrawing its reservation to subparagraphs (a) and (b) of article 4. Recalling its general recommendations No. 15 (1993) and No. 35 (2013) on combating racist hate speech, the Committee recommends that the State party take appropriate steps to revise its legislation, in particular its Penal Code, in order to give effect to the provisions of article 4. It demanded that Japan firmly address hate speech during demonstrations, investigate and prosecute individuals and organizations responsible for such acts, and punish public officials and politicians who disseminate hate speech. Japan should also “address the root causes” of racist hate speech and “strengthen measures of teaching, education, culture and information,” with a view to combating prejudices which lead to racial discrimination and promoting understanding, tolerance and friendship among nations and among racial or ethnic groups, it said. It urged the Japanese government to regulate hate speech by law, following a rise in racist demonstrations mainly targeting Korean residents in the country. 69 It is reported that “Japanese activists’ battle against racism often feels global. T-shirt designs in English, signs that feature photos of Trayvon Martin and Angela Davis, and C.R.A.C. Twitter accounts in the United Kingdom and North America gesture towards an international audience. Twitter-savvy activists reference Black Lives Matter, NoDAPL and the Women’s March as allies and examples. Political shifts towards nativism and authoritarianism in the United States and Europe have inspired some activists to see their battle as part of a larger one for democracy” (Shaw, 2017). 70 This is quoting the words of Shoji Nishida, a conservative Japanese politician of the Liberal Democratic Party, a member of the House of Councillors in the Diet (national legislature) after his visit to Sakuramoto.

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Index

2channel 18, 34 Abe, Shinzô 64, 118, 165 Action Conservative Movement 23, 37n2 affects 13, 48 agency 45, 48, 107 agenda setting 114, 118 aikoku 23, 25, 27, 34 anonymity 53, 129 antagonism 11, 14, 136 Anti-Hate Speech Act 112, 115 anti-hate speech law 112, 153, 165 anti-hate speech movement 154, 170 anti-Korea 18, 23, 97, 105, 164, 170, 178n7 anti-racism 112, 153, 170 anti-semitic 60, 97, 135 Article 19 99, 107, 134, 139 Asahi Shimbun 61, 66, 116, 120, 121 atomic humour 59, 61, 62 backlash 45, 50, 156, 168 balance 107, 140 banal misogyny 43, 46 banal nationalism 55 Billig, Michael 48, 55 Butler, Judith 15 caricature 60, 64 Charlie Hebdo 60, 71, 97 Chōsen 23, 24 civic group 34, 112, 118, 120, 170 collective identity 156, 170 colonial 7, 24, 97, 105 comfort women 23, 29 counter movement 37, 118 Daesh 78, 79, 84, 91n2 Dar al-Islam 81

defamation 10, 16, 61, 132, 157, 158, 160 democracy 96, 102, 106, 136 derogatory 17, 24, 50, 158 dignity 13, 128, 143, 155, 160 discrimination 7, 12, 23, 97, 99, 128, 135 doenjang-nyeo 48 DPJ (Democratic Party of Japan) 113, 118, 120, 122 ECHR (European Convention on Human Rights) 97, 136 ECtHR (European Court of Human Rights) 17, 138, 143 emotion 77, 86 enactment 114, 122, 124, 166 ethnic education 155, 161 ethnicity 2, 12, 100, 163 European Commission 128 Facebook 17, 171 fake news 1 Faludi, Susan 45 fear 83, 87, 90, 152 feeling 46, 79, 86, 133, 161 First Amendment 14, 97, 102, 131, 142 forced labour conscription 27 football 64, 65, 79 freedom of expression 63, 71, 97, 99, 112, 129, 131, 138 freedom of speech 4, 13, 20, 31, 96, 100, 121, 132, 154, 165 Fukushima nuclear disaster 59, 62, 65 globalization 12, 60, 96, 102 Hanadokei 25, 29 harassment 17, 47, 118, 164 hate crime 8, 10, 106, 114, 163, 169, 176, 181n37

192 Index HRC (Human Rights Committee) 138, 143 human rights 129, 154, 155 humiliation 77, 86 humour 50, 59, 60 ICCPR (International Covenant on Civil and Political Rights) 15, 100, 134 ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) 95, 158 ideology 48, 76, 80, 141, 172 Ilbe 7, 10, 98 IMADR (International Movement Against all forms of Discrimination and Racism) 153, 165, 173, 178n14 IMF (International Monetary Fund) 103 immigrant 7, 10, 77, 159 jihadist community 78, 84, 90 Jongbuk 7 Kawashima Eiji 69 Kim-yeosa 44, 48, 51, 55 Kingdon, John W. 113, 121 Kyoto District Court 157, 158, 168 Kyoto Korean School 112, 152, 155 LDP (Liberal Democratic Party) 112, 120, 122 left wing 33, 34, 35 legislation 4, 14, 95, 98, 115, 122, 153 LGBT 43, 97, 130 litigation 154, 155, 158 mainstream media 46, 49, 62 manga 35, 62 manifesto 26, 120 marginalize 1, 8, 13, 97, 107, 144, 153 media frame 44, 55 meta-analysis 7 Mill, John Stuart 102 Mindan 38n11, 118, 120, 125n10 minority 8, 13, 56 misogyny 17, 43, 44 Muslim 7, 78, 80, 86, 133 national identity 24, 37, 55 nationalism 7, 48, 104, 178n7 nation state 24, 96, 103, 106 Nazi 133, 138, 153 neoliberal globalization 102, 108

192 neologism 50, 117 NHRCK (National Human Rights Commission of Korea) 98, 105 Nikkei Shimbun 66, 69, 70 Nussbaum, Martha 45, 56n3 objectification 17, 56n3, 69 obscenity 130, 132, 139 OHCHR (Office of the High Commissioner for Human Rights) 100 Olympic Games 63, 64 online hate speech 10, 16, 43, 54, 128 Oster, Jan 15 patriarchy 47 patriotic porno 34, 35 patriotism 23, 25, 36 Philippine Supreme Court 130, 131 platform capitalism 106 policy window 113, 124n2 political correctness 50 politicization 114, 118 propaganda 32, 86, 135, 152 psychological 8, 25, 76, 129 public opinion 155, 176 public sphere 4, 14, 96, 117 racial discrimination 7, 97, 122, 154, 164, 168, 173, 181n40 racism 56, 77, 107 radicalization 76, 81 refugee 2, 7, 36, 97 regulation 2, 15, 107, 123, 134 religion 2, 12, 61, 81, 132, 137 representation 55, 62 rhetoric 25, 46, 167 right wing 153, 169 sexual harassment 17, 47, 51 sexual orientation 12, 137 social inequality 96, 102, 144 social media 7, 118, 130, 171 Soyokaze 25, 26 stereotype 46, 55, 76 strategic litigation 154, 158, 161, 169, 179n15 strategy 17, 34, 76, 90, 96, 113, 155 street demonstration 35, 162 threat 81, 82 transnational corporation 103, 105 Twitter 34, 117, 171

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Index

193

UDHR (Universal Declaration of Human Rights) 99, 138 Ueno, Chizuko 45, 54 UNHRC (United Nations Human Rights Council) 99 universalism 101, 168

Waldron, Jeremy 15

victim 3, 18, 36, 44, 63, 78, 97, 107, 141

zainichi 23, 152, 159 Zaitokukai 23, 30, 38n3, 98, 112, 116, 118

xenophobia 60, 127, 162, 178n7 Yomiuri Shimbun 61, 66, 70, 116, 121 YouTube 31, 117