1. The Concept of Hate Speech and The Legislative Trends

The concept of hate speech discussed in the international human right treaties, academic debates and articles can be summed up in the following way. First, hate speech is speech which attacks the identity of a person or minority group that has been discriminated and oppressed socially and/or historically. Therefore, hate speech is different than the speech of defamation and insult under the Criminal Act in nature. Secondly, there are various ways to express the feeling of hatred. To which extent should the lines be drawn or the act be prohibited by legislation depends on the society, and this is the most challenging area in hate speech study. Thirdly, while hate speech at the private level may be sanctioned by laws, hate speech at the public level requires more discussion concerning the possibility of legal control and legislation.
Further, the relationship between hate speech and freedom of speech needs to be defined. Today, freedom of expression is a constitutional right protected by that statute as a universal right, which goes beyond the traditional ideology of the “suppression of freedom of speech by state power” in the political aspect. The relationship between restriction and freedom of speech should be able to deal with this point with more clarity.
In the relationship between freedom of speech and protection against hate speech, it is necessary that clear legal boundaries with more detailed criteria be imposed on the types of speech that incite and instigate discrimination, hostility or hatred, while not infringing on freedom of speech as a fundamental principle. One should be, however, mindful that hate-crime laws do not punish people for merely having hateful ideas or thoughts in abstract forms. It implies that from improvement of social awareness through education or some other means to criminal law remedy, various strategies to counter hate speech need to be sought out, or at least a guideline needs to be developed as a public reference. If the policy-makers consider hate crime or laws that prohibit hate crimes in the future, they should deliberate the legal elements of such crime or laws with absolute clarity.
From the perspective of comparative law, the hate crimes legislation of Europe has more direct and harsher application than that of the US, which is restricted as much as possible for the state not to overrule the freedom of speech. For instance, in Germany the relevant statutes focus on the regulation of hate speech based on historically experienced hostility against a certain race or religion and forbid any statements that deny the Holocaust or provoke an act of violence against a person or group due to race, religion or other comparable traits, while in the U.S., even hate speech is protected under the First Amendment of the U.S. Constitution as free speech. In Germany, too, freedom of speech is a constitutional doctrine and as such respected and protected by the laws; however, freedom of speech is balanced with other values, rights and interests in the German law. It should be also reminded that in the U.S., people recently began to voice their concerns about hateful speech, especially fighting words or statements that immediately incite violence or wrongdoing and demand that a new regulation standard be established according to the principle of proportionality between the harm caused by hate speech and the protection of free speech. In Japan as well, anti-hate speech laws have been enacted as the government recognizes that discriminatory expression and behavior cause not only insufferable pain to the victims, but also serious divisions among the communities. Consequently, the Japanese Government has declared its strong will to end such evil and calls for a united effort from the local governments. It is significant that the state makes a clear declaration of its position against discrimination and announces that equality, in the sense of anti-discrimination, is the norm of the society and the country as a whole. The most critical factor behind the enactment of anti-hate speech laws in Japan was the UN’s recommendations on the discriminatory words and conducts being made against certain people and races in the Japanese society. Accepting the recommendation, the parliament put an effort to restrict hate speech through legislation and the courts confirmed that racist hate speech is a violation of law, both of which endeavors have proven effective to regulate hate speech. Also significant is that in Japan the anti-hate speech legislation allows certain measures to check the problematic speech or expression that is likely to harm the dignity of a person and cause discrimination against him/her in relation to freedom of speech, and thus tries to protect human rights and restrict hate speech. Nevertheless, it should be noted equally that in Japan’s anti-hate speech statutes, discriminatory words and conducts do not include the discriminatory words and conducts against racial and ethnic minority groups and as a result, the anti-hate speech laws simply regulate discriminatory words and conducts. Moreover, the statutes prescribe the duty of the state and local governments to control hate speech simply as a duty to try. For these reasons, the Japan’s anti-hate speech laws have been criticized.
Finally, according to the international standards, EU’s anti-discrimination directive, the hate crime laws in the U.S. the anti-discrimination laws in Germany, and the anti-hate speech laws in Japan, all indicate that enactment of anti-discrimination laws or hate crime laws is being in demand. Certainly, enacting anti-discrimination laws becomes an international trend. Korea is and should not be an exception, and it requires a careful judgment as to how and if we could reflect our unique social and cultural characteristics to those types of laws, and to what extent we should apply the international human right standards to our own. Anti-discrimination laws should be equipped with concrete and detailed provisions. It is desirable that in the circumstances where the Constitution has a provision that guarantees the equal right of people, the sub-laws define the substantial aspects of the matter and provide the practical guidelines to avoid potential confusion. For the legislative demand for anti-discrimination laws to be satisfied and for the laws to be effective, the legislation should provide first the ground of such prohibition against discrimination, but more importantly remedies and sanctions attached to the violations of the prohibition of discrimination. In other words, confirmation of the grounds of discrimination and practical remedies are likely to be the most critical elements in making make anti-discrimination laws an effective and practical means of relief.

2. Hate Speech in Daily Life

First of all, I would like to present the findings from the analysis of the online posts in various cyber communities, which are often regarded as the most troublesome venue in regards to hate speech.
To sum up, misogynist posts and the responses to those posts took the majority of all posts (based on the numbers of response and recommendation), regardless of the nature of the communities. Hatred of women often appeared combined with hatred of the disabled, sexual minorities, and immigrants.

Hatred of Women

Some argue that hatred of women, or misogyny, which belittles women by calling them ‘kimchi-nyeo’ or discriminates them because of their sex in reverse discriminational frame is simply a unilateral argument made by the women themselves, especially by some women who have complex about their physical appearance or dating issues. This argument in fact resulted from and supported the existing discourse that hatred of women is a consequence of widespread male anxiety in the era of new liberalism, as men are more challenged to keep their dominant position in the culture of traditional masculinity with respect to employment, dating, marriage and other social events in these days. While men’s hatred of women appeared consistently and with force throughout the online forums regardless of their political inclination, hatred of sexual minorities, the disabled, and the foreigners often called for reconsideration for humanistic values, such as tolerance, compassion and acceptance depending on the forum, and was developing into a more public issue as a result.

Hatred of Sexual Minorities

Hatred of sexual minorities was spreading through the androcentric narratives about homosexuality, in which heterosexual men humiliate ‘gay’ men by feminizing or eroticizing them with exaggeration, calling them 'ttong-go-chung', which means a person who likes anal sex. This type of hatred was based on the traditional idea of heterosexual marriage, strict gender roles and the persistent denial of institutional rights to same-sex couples. Many posts in a cyber community called Ilbe Storehouse openly related homosexuality to AIDS and viewed it as an illness, but in other communities few comments were made concerning homophobia.

Hatred of Foreigners/Immigrants

As for the hate speech against foreigners or immigrants due to their racial origin, ethnicity, or nationality, hate speech against the ethnic Koreans called chosunjok who had moved to and settled in China in the early 20th century was most noticeable both in frequency and savagery. Hatred of foreigners was sometimes expressed as counter-protest or anger for the hatred that the writers/speakers themselves had experienced in the western countries. In this sense, the context of this type of hatred was similar to that which created hatred of women by defining the Korean males as the victim of reverse discrimination. Consequently, hate speeches against Korean females who married a foreigner or engaged in prostitution were frequently accompanied with hate speech against the native country of the foreigner. On the other hand, not many people appeared to think that they lost their jobs to the foreign workers or see the foreign workers as potential criminals, compared to their open animosity towards certain countries, including China, Japan, North Korea, or East Asian countries.

Hatred of the Disabled

Hate speech against disability was made, in general, not so much directly against the disabled people as indirectly against women or as a means to disparate certain regions or political ideologies. From the semantic point of view, theoretical discussion about the disabled was rather noticeable and many online posts demonstrated a widely shared idea that the disabled are a socially disadvantaged group and the treatment towards them should be improved.
Due to the difficulties in converting the hate speech experience that the social minorities encounter on a daily basis into data, I also conducted an interview among the minority groups and their social workers, and confirmed that the result was not much different from the result from online data analysis. The interview revealed that hatred of women was usually intertwined with hate speech against the disabled, sexual minorities, or different races in the interviews. Also, in most cases, women were demeaned and judged for their physical appearance or portrayed as evil beings who took advantage of men. Other responses even justified sexual discrimination or violence against women.
In the case of sexual-minority adolescents, whose social independence and autonomy are often denied in our society, most of them were placed in a situation in which they were unable to respond properly to or defend themselves against insults, threats, and even physical attacks on them as firstly, such violence was justified in many cases as an attempt to correct and disciple them by their parents or other responsible adults, and secondly they were afraid of being 'outed' against their own will. Hate speech against immigrants showed similar results as those from the online data analysis: the harshness of disparagement depended on the economic status of the immigrants’ native country and the chosunjok were often regarded as potential criminals. Cloaked in pity and preferential treatment, hate speech against the disabled was based, in reality, on a perspective that the disabled are lesser human beings who are incapable of decision making. hate speech against the disabled was also used to belittle others regularly to the extent that the speakers easily overlooked that their words or behaviors were discriminatory against the disabled.
Secondly, Article 19 of the International Covenant on Civil and Political Rights prescribes that in examining the prohibited incitement, not only the contents or context of the expression in issue and the possibility of harm, but also the characteristics of the speakers and the scope of expression are to be considered. Thus, I investigated the impact or ripple effect of hate speech depending on the medium of expression and the social status of the speaker in the following.
While it was clear that the characteristics of hate speech depended on the means of expression and the speakers, many pointed out cyberspace and mass media as the fingertip access to hate speech. Especially in the case of hatred of women, sharing of sexist images and writings became a type of culture and business and spread to the younger members of the society. As more and more women who had protested against this trend suffered exposure of their identity to the public, along with their private affairs and photos, the public began to demand strong measures to stop this trend.
At the same time, in that the cyberspace was regarded as a public forum, where online users could express their concerns about hate speech and interact with one another and where the sexual minorities could find some useful information in the course of establishment of their sexual identity, the analysis implied that fairness of the laws and objectivity of information should be improved.
In addition to the fact that hate speech was made frequently in the form of assembly or protest, another issue identified through the online data analysis was that when banners or wall posters with inion of hate statement were displayed in a public space, such as school or church, for a certain period of time, the influence of such statements were more severe on the minority groups. In particular, hate speech made at the assemblies or demonstration sites was intensifying the risk of the participants’ involuntary ‘outing’ and the fear of becoming the victim or hate crimes. Nevertheless, making a proper response to this type of evil was challenging. If the minorities used signs or banners to protest hate speeches, those signs or banner were often torn down by the hate groups. Moreover, to post a rebuttal statement in a public space, the members of sexual minorities should follow the official procedures to obtain a permit and then visit the site in persons to actually place the signs or banners, which was difficult as they did not want their sexual orientation to be publicly known to others.
In the case of media, such as TV and films, or creative works such as online comics called webtoon, citizen monitoring and participation to control hate speech was relatively active but many people were skeptical about the effects of such efforts.
Rather than the medium of expression, the speaker’s social status or relationship with the victim turned out to be more important as it had greater impact on the latter.
Needs of regulation arose from the public awareness of the troubling circumstances in which hate speech not only was justified by the public servants during the exercise of their public duties, or by certain categories of authorities, such as teachers, college professors, ministers, doctors, and social workers, but also affected the family and friends of the members of minority groups. Making hate speech in the name of lecture, teaching, conveying knowledge, or treatment was also recognized by many people as a problem.
Thirdly, the analysis of online data revealed that hate speech had psychological effects on the victims as it intensified their sense of isolation and loneliness, as well as the anxiety of their own existence, and damaged their self-esteem. Sometimes, a certain category of people were excluded from social networks or relationships or denied of exercise of their basic rights, such as education or employment. In this cases, social distrust was generated among the citizens. The analysis also has signified that continuous exposure to hate speech makes the victim accept the discriminatory treatment of others unconsciously and strengthens the fear of harm by hate crimes. As a result, it damages the victim’s ability to resist against not only hate speech but also ultimate discrimination they encounter.

3. Regulations of Hate Speech

First, there is no precedent that the courts recognized the crime of defamation or insult under the Criminal Act concerning hate speech. Hardly can we find a case in which hatred was recognized as discrimination against a certain group or a person, as well. However, in that the Act on the Prohibition of Discrimination Against Persons with Disabilities, Remedy Against Infringement of Their Rights, Etc. (hereinafter referred to as “the Act”) forbids using derogatory expression to cause the disabled a sense of distress, it might be presumable that the law defines hate speech as a form of violation. As there has not been a court ruling concerning the violation of the Act, it would be safe to say that there is no legislation of hate speech in Korea at the moment. Swear words or curses are the most common form of hate speech in cyberspace. While the dictionary definitions of these words and of the malicious posts and messages are simply derogatory word or humiliating and shameful expression, a certain form of such expressions sometimes becomes the subject of legal punishment. Under the current legislative regime which does not recognize the crime of group defamation, hate speech at the individual level is usually made directly towards the target individuals and as such it injures the persons’ safety and peace. Threats, derogatory remarks, swear and curse words are included in this type of hate speech at the private level. Depending on the details and context of an incident, private-level hate speech might be punished by the laws that prohibit violence or threats on another person(s). If the speaker intended to cause psychological harm to the victim through hate speech, the speaker might be punished by the laws on the grounds of infringement of privacy or discrimination. Naturally, the end results will depend on how vigorously the victim of hate speech will condemn the speaker of hate speech by the laws; however, the legal remedy for hate speech at the private level is widely available.
Secondly, I set a limit to the crimes of insult under the criminal laws and analyzed their application to the online hate speech. Of total 376 cases of hate speech, insult as a discriminatory expression based on gender, immigrants, disability, or sexual orientation [‘hate speech’ in this chapter] and the response or refutation to the initial insult which, too, amounted to an insult were 127 cases in total, accounting for 33.7% of the total cases. When I applied duplicate classification method with the context of hatred being the grounds of discrimination, hate speech based on gender were 114 cases, accounting for an alarming 95.8% of the entire hate speech cases. Discrimination based on regions were only two cases, despite that such discrimination is being discussed by the policy-makers as a regulatory target of hate speech. In the cases of hatred of women, disparaging and shaming the victims as if they had been sexually promiscuous accounted for 49.1%, making a harsh caricature of women in general, including the victim, as an object of accepting penetration and criticizing women’s physical appearance accounted for about 20%.
Compared to other types of online insults, hate speech was made more frequently in online chat rooms or online game sites or communities. Since it was usually generated within the spaces that offer strong anonymity, once a victim’s identity was exposed along with his/her photos and video clips, the degree of harshness and frequency of hate speech increased. It indicates that in addition to the criminal sanctions, required is a measure to remove the victims’ private information from the online space as quickly as possible. Further, 37% of the total hate speech cases were concurrent offenses with a crime of threat or violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (incitement of terror or anxiety), and they were very much likely to develop into another form of crime. As filing of online defamation and insult gradually increases, differentiated approaches to the cases and protection measures for the victims should be prepared with a careful consideration of the degree of personal information disclosure and the risk of threats against the victims.
As the courts rarely accepted any justification of hate speech, the acquittal rates in hate speech cases were relatively low and the courts’ sentencing did not show any statistically meaningful difference. The same was true in the amount of fines under monetary penalty. To conclude, in terms of application of the crime of insult under the current criminal laws, hate speech was not punished more harshly than other forms of expression.
Finally, concerning the argument of not guilty, the main issues included whether the victim was specifically targeted, whether the speech in question constituted a simple expression of opinion, not amounting to insult, whether the speech could be judged as a reasonable speech even if it amounted to insult, and the issue of statutes of limitation. Currently, the courts examine whether certain remarks or speeches constitute insult that disparages the victim’s reputation and whether, given the background of posting and motivation, making such remarks or speeches has not conflicted with the norms of the society. The courts also review the elements of the crime, such as motivation, justification of objective, reasonableness of the means or manner of expression, balance between protected and infringed interests, urgency, and the principle of subsidiarity.

4. Response Measures to Hate Speech

To secure an opportunity of counter-speech to hate speech, regulation on hate speech should be exercised only to the extent that it will not infringe the freedom of expression. Bearing this in mind, I investigated the response measures to hate speech in order to identify the factors that suppress counter-speech.
First, the most significant factor was the reality itself where acts of discrimination are committed on a daily basis. In the circumstances where a victim could not help fearing the possibility of deportation, loss of employment, involuntary coming-out, or physical attack, even if he or she tries to internalize discrimination, accept the reality and not to fight back, or even if he or she takes a more active measure to resist, an equal counter-speech is impossible.
Hate speech created in a rather intimate relationship, such as among the family members and circle of friends, seems to have a greater influence over the victims. In those intimate areas, hate speech is often regarded as a ‘family’ affair and becomes invisible to the outsiders while the victim’s pain grows more intense. Therefore, the state’s intervention through laws and policy is not simple, and the effectiveness of any preventive measures, both punishment and prohibition, is hard to expect. All of these circumstances reinforce the necessity of a new approach to protect the victims and support their independence.
Secondly, in addition to being marginalized in their own societies, the victims fear the potential harm of a crime, and this was the second factor that makes counter-speech challenging.
Sometimes hate speech implied and warned an act of violence. If not, the victims were, in many cases, too intimidated to make counter-speech due to the fear of potential harm. For women, this was far more immediate and embodied fear. Once a victim suffers her identity to be exposed to the public through online spaces, and further, receives a warning message of violence, her will to make counter-speech is weakened and the fear increases. Nevertheless, the study showed that few telecommunications service provide offered a proper action to deal with the issue.
Thirdly, more active response to hate speech was possible only through the gatherings and solidarity with the people who support them, either online or offline. Especially, the offline meetings served as a useful channel to obtain necessary information and share their own experiences, and therefore regulation of hate speech in these venues is more critically required.
However, building a proper network is taxing. In offline mode, slow but effective movement against hate speech, and even some active participation and responses of the citizens as a whole have been taking place gradually. Since hate speech and discrimination are not just an issue of certain individuals but rather of collective responsibility of the whole society, citizen participation seemed to be critical. In fact, the study confirmed that scattered individuals first gathered together at certain online communities and built a loose solidarity to resist hate speech. Then, they advanced to organize themselves to continue the efforts, mostly through online monitoring and seminars.
Fourthly, some limitations of filing a complaint through the existing legal and administrative system have been noted as well. For instance, immigrants and foreigners generally have no knowledge of the laws in Korea, and thus they did not even know, in many cases, against which types of events they could file a grievance and where they should go to find help. The disabled, too, tended to have difficulties in making a proper response without appropriate support or assistance. Some pointed out the improper attitudes of the public agencies towards the disabled as the agencies sometimes denied the disabled’s attempts to file a complaint even if they were sufficiently capable of making a decision.
Discriminatory treatment or interventions of the telecommunications service providers or the law-enforcement services was also pointed out as a factor to weaken, or even destroy, the victims’ attempts to properly respond to hate speech. In the filing stage with the police, reported cases were that the police officers refused or avoided to accept the victims’ complaints, or urged a settlement between the parties. Commonly noted fact was that both the telecommunications service providers and the police viewed counter-speech more dangerous than the initial hate statements themselves, and thus focused on eliminating the relevant posts and then refused to receive any complaints or reports on the matter. It signifies that even if an administrative regulation is established, expecting a material effect will be limited unless the public servants or relevant business operators do not change their attitudes towards the vulnerable and disadvantaged members of our society.