Regulating Hate Speech－Focusing on Constitutionality of the Crime of Genocide Denial in European Countries

• Main Authors: Hsing-Jung Chen, 陳興蓉
• Other Authors: Tzong-Li Hsu
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/e99r3x

碩士 === 東吳大學 === 法律學系 === 103 === From the Article 6-1 of the Draft Crime of 228 Incident Denial, we can consider several questions: What is hate speech? Is it part of the constitutional protection of freedom of expression? Do countries regulate hate speech, and if so, how do they regulate it? Does historical revisionism belong to hate speech? Do countries regulate historical denial and if so, by what means they regulate it? Would the legislation of this draft be appropriate? This study discusses different definitions of hate speech, and analyzes the concept of hate speech. It also introduce regulations against hate speech in the United States, Germany, and United Kingdoms. In addition, this study compares and contrasts how hate speech is regulated under different backgrounds, such as periods of history, cultures, and countries. The main purpose of this study is to present regulations against the Crime of Genocide Denial in European countries. Next, this study presents cases against the speech of Genocide Denial in European countries, including Roger Garaudy v. France, Perinçek v. Switzerland, Nationaldemokratische Partei Deutschlands, Bezirksverband München-Oberbayern v. Germany, Friedrich Rebhandl v. Austria, Herwig Nachtmann v. Austria, Faurisson v. France, and debates over these cases. Through these cases, we can observe the process of judgement in each case, and the attitude of the European countries toward constitutionality of the Crime of Genocide Denial. This study also analyzes the constitutionality of the Draft Crime of 228 Incident Denial. Moreover, this study draws some comparisons with regulations against the Crime of Genocide Denial in European countries. Hate speech means the expression which can incite hatred to certain group based on racial, religious, ethnic, national, or sexual reasons. The reasons to regulate hate speech are protecting people from physical, mental, and economical harms and maintaining dignity, honor, and public peace. Holocaust Denial began in European countries in 1970s. In order to prevent this kind of expression, European countries criminalized Holocaust Denial. We think that the speech of Genocide Denial is a type of hate speech. In special historical background, the speech of Genocide Denial might be sufficient to amount to incitement of hatred. Dignity, honor, and public peace of the victimized people protected by the Draft Crime of 228 Incident Denial are also protected by hate speech regulations. Therefore we think the speech of 228 Incident Denial is also a type of hate speech. However, there is no unanimity in Taiwan as a whole concerning the personal liability of 228 Incident. Before the personal liability of 228 Incident being clarified, Article 6-1 of the Draft Crime of 228 Incident Denial may not be appropriate and constitutional. Transitional Justice and the personal liability of 228 Incident should be dealt with first. The point of endeavor is to promote the practice of transitional justice to make the society recover from the shadow of 228 Incident. Although the process of the practice may not be easy and many obstacles need to be removed, if we skip this step and criminalize 228 Incident Denial, the problem will not be solved completely.