Legal responses to racial hate speech in Japan
It has been known that attitudes to legal regulation of racial hate speech and denialism differ to a great extent from one country to another, and that there are primarily two contrasting approaches in this respect. On the one hand, a number of European States as well as Canada have criminal law provisions punishing incitement to hatred based on race, national or ethnic origin or religion, many of which were enacted in view of implementing the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The European Court of Human Rights has held that hate speech does not benefit from the protection of freedom of expression under the European Convention on Human Rights, and has in principle upheld restrictions to expression inciting racial hatred. In the Council of Europe, the European Commission against Racism and Intolerance (ECRI), established in 1993 to monitor the situation of racism and to make policy recommendations, takes the position that all member States, at a minimum, must have a prohibition of incitement to national, racial or religious hatred within its criminal law. Many States also have laws criminalizing denial of genocide and other international crimes. In recent years, national law of the EU member States in the area has been oriented by the EU Framework Decision 2008/913/JHA designed to harmonize criminal legislation combating racism and xenophobia. On the other hand, the United States takes a different stance to the limit of the freedom of expression enshrined in the First Amendment of its constitution. In the US, prevailing doctrine refuses content - based regulation of the freedom, including racist expressions, and admits restraint only in the case of the explicit advocacy for imminent violent action that is likely to occur (the Clear and Present Danger requirement). While a number of European States as well as the US appended declarations and reservations to Art.4 of the ICERD underlining the need to respect the freedom of expression, a contrast between the two models is conspicuous, and the distance is not likely to narrow down easily. Between these two models, there are also States which deal with racial hate speech by means of anti-discrimination law and a national human rights institution. Australia, for instance, with the amendment of the 1975 Racial Discrimination Act in 1995, made offensive behaviour because of race, colour or national or ethnic origin which is likely to offend, insult, humiliate or intimidate another person or a group of people unlawful (Art.18C), and opened the victims of such acts a way to file a complaint to the Australian Human Rights Commission. In such a landscape of international and national legal responses racial hate speech briefly described above, where does Japan stand? The question seems pertinent and indeed intriguing, given that, while it has commonly been said that racial discrimination is not a prominent issue in Japan, the situation is definitely different these days.