혐오표현의 규제에 대한 인권법적 고찰 - 국제조약상 입법화 의무를 중심으로

Abstract

Hate speech generally refers to “expression of hatred or discrimination or expressions that incite violence against an individual or group, simply because they have special attributes such as race, gender, or nationality (country of origin).” Hate speech impedes the integration of a nation and creates social instability by making negative prejudice or stigma against a particular group, and by promoting unfair treatment, discrimination, and violence, undermining the personality or human dignity of each person in the particular group and making it difficult for their social participation. It is argued that the regulation is necessary as, in its extreme form, hate speech can lead to genocide. On the other hand, it is pointed out that the regulation of hate speech amounts to regulationofcontentandisregulationofviewpoint,andthereisapossibilitythatevenlegitimatecriticismofaspecificgroupmaybeblocked,whichmayinfringeonfreedomofexpression. In particular, the International Convention on Civil and Political Rights, the Convention on Prevention and Punishment of the Crime of Genocide, and the International Convention on the Elimination of All Forms of Racial Discrimination, which are all conventions to which Korea is a signatory, prohibit advocating hatred of any nationality, racial or religious that corresponds to incitement of discrimination, hostility, or violence and requires member states to introduce legislation of punishing "direct and public incitement to commit genocide" and “incitement of racial discrimination." The United Kingdom, Germany, France, and Canada have regulations that punish certain forms of hate speech against race, nationality, and religious groups. In the United States, on the other hand, legislation regulating hate speech is generally not allowed based on the view of such legislation as a violation of the freedom of expression. In Korea, some hate expressions that refer to a particular individual can be punished for defamation or insult under criminal law and sexually discriminatory statements that are deemed as sexual harassment or hate speech for persons with disabilities may be regulated under special laws as discriminatory acts. However, laws generally regulating hate speech do not yet exist. Legislation is inevitable, as there is an obligation to punish or prohibit some forms of hate expression under international conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination, to which Korea is a signatory. In order to harmonize the regulation of hate speech and the freedom of expression, it is necessary to minimize the scope of hate speech that is punishable or forbidden to be aligned with treaty obligations and to specify the content and aspects of regulated hate speech as much as possible. In that sense, it is necessary to limit the target group of hate speech to 'race, ethnicity, nationality, and religious group', and to expand the scope in accordance with the changes in social conditions. Criminal punishment, in particular, should be limited to “incitement of hate behavior,” whereas non-judicial remedies be taken with respect to hate expressions that are not subject to criminal punishment and are simply prohibited as discriminatory acts through discrimination correction bodies such as the National Human Rights Commission.