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What is Hate Speech? Shall and How to Regulate?

Analysis of Jurisprudence of the European Court

of Human Rights

Fort Fu-Te Liao

Institute of Law, Academia Sinica

No. 128, Sec. 2, Academia Rd., Taipei 11529, Taiwan



This article reviews issues including what constitutes hate speech

and whether and how to regulate it through an analysis of the judg-

ments of the European Court of Human Rights. The relevant cases are

divided into five fields: political controversy, religious conflict, racial

dispute, national identity and gender character.

The Court does not explicitly define hate speech, but regards Na-

zi, Fascist, anti-Jewish, extreme expression, exclusion of Muslims or

members of a specific race, race-based threats, and appeals to violence

as forms of hate speech. Some of these expressionsare excluded from

protection because of Article 17 of the Convention. The Court also

rules that a political party based on Sharia law can be dissolved; pre-

ventive measure can be imposed due to an association with true

threats; speech appealing to violence can be prohibited.

This essay argues that the Court need not draw a “restricted

zone,” nor emphasis the application of Article 17 of the Convention.

It may, instead, focus on second paragraphs of Articles 10 and 11 to

review whether the restrictions comply with the principle of propor-

tionality. The essay also argues that the Court has to clarify why Sha-

ria law does not stand with democratic principles. The Court should

insist on its own relevant and sufficient pressing social need principle.

Key Words


hate speech, European Convention on Human Rights,

European Court of Human Rights, freedom of expression,

freedom of association