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什麼是仇恨言論，應否及如何管制
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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
E-mail:
ftliao@sinica.edu.twAbstract
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