Osaka’s move on hate speech should be just the first step

Ordinance officially 'Japanizes' the naming and shaming of haters, which is a good start

by Debito Arudou

On Jan. 15 the Osaka Prefectural Assembly passed the first local ordinance against hate speech in Japan. JBC sees this as a step in the right direction.

Until now, there was no way to define what “hate speech” was, let alone take any measures against it. Defining a problem is fundamental to finding a solution.

Moreover, passing an ordinance makes a general statement to society that the existence of hate speech is not only undeniable but also impermissible. This matters, given Japan’s high tolerance for racist outbursts from public officials and clear cases of bullying and intimidation that have otherwise been protected under “freedom of speech” (genron no jiyū). Osaka has made it clearer that there is a limit to what you can say about groups of people in public.

However, this still isn’t quite at the stage where Osaka can kvell. There are no criminal or financial penalties for haters. An earlier version of the ordinance offered victims financial assistance to take their cases to court, but that was cut to get the measure passed. Also, an adjudicating committee (shinsa-kai) can basically only “name and shame” haters by warning and publicizing them on a government website — in other words, it can officially frown upon them.

Even the act of creating a law against hate speech has invited criticism for opening up potential avenues to policymaker abuse. They have a point: Tampering with freedom of speech invites fears, quite reasonably, about slippery slopes to censorship. So let’s address the big question right now: Should there ever be limits put on what you can say?

JBC argues yes. Freedom of speech is not an absolute. You cannot just say anything, anywhere, anytime. We already have the prototypical argument against shouting “Fire!” in a crowded theater, and obviously freedom of speech does not allow people to perjure or defraud. The general consensus in legal circles is that people should in principle not be allowed to advocate harm against other people. In sum, when speech encourages panic, violence or a general breakdown in social order, the State generally steps in to quell it (if only for the State’s own preservation).

But even beyond the law school hypotheticals, laws against defamation, libel and slander — i.e., telling lies or generating harmful rumors about people — are quite normal and uncontroversial in any developed judiciary. Japan already has measures against meiyo kison (damage to honor), albeit not in its Criminal Code. This means you have to take whatever bothers you to civil court and convince a judge that a) your reputation has been provably damaged by the speech (just claiming emotional distress, or seishin kutsū, is insufficient) and b) this has affected you financially, so you can quantify the damages you should be awarded. I know. I’ve done it, successfully (see “2-Channel, the bullies’ forum,” JBC, Feb. 3, 2009).

Thus hate speech is an offshoot of libel and slander, in that the damage extends beyond the individual into the group. Are people allowed to publicly denigrate or advocate violence or discrimination towards entire segments of a society? In Japan until now, yes, they could. Japan essentially restricted defamatory tort claims to the individual.

However, after a number of embarrassing events that attracted international attention, including a famous anti-Korean demo in Osaka in 2013 where a schoolgirl advocated that Koreans be killed a la the Nanking Massacre, people began to see that a line had been crossed. Further, placards in Tokyo that same year advocating the killing of “all Koreans, good or bad” raised awareness that this public hatred was not an isolated incident.

A court decision, also in 2013, ruled that denigrating and vandalistic behavior towards a Korean school in Osaka by a hate group was legally punishable (as “illegal discrimination,” not hate speech per se). And the Justice Ministry issued its first ever official warning specifically for hate speech to the former leader of that hate group last December. Thus Osaka has merely converted court precedents into officially sanctioned social opprobrium.

It’s not as if Osaka is doing anything unique. Laws prohibiting advocating discrimination and inciting racially or ethnically based hatred exist in Australia, Brazil, Chile, Denmark, Germany, Great Britain, Holland, Iceland, Ireland, New Zealand, Poland, Serbia, Singapore, South Africa, Sweden and Switzerland, to name a few. Some countries’ laws go even further, criminalizing specific incitements, such as genocide or Holocaust denial (Belgium, Canada and Finland).

You may not agree with the boundaries being set there (after all, each society has a different history it is reacting to), but they are indeed set.

And there is an international consensus backing them up: the United Nations International Covenant on Civil and Political Rights, which states, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Japan acceded to the ICCPR way back in 1979, so Osaka’s ordinance is in fact 37 years overdue.

Now that Osaka has done it, other municipalities are feeling emboldened. According to the Asahi Shimbun, on Jan. 18, 64 labor unions, local groups and assembly members announced the formation of the Kawasaki Citizens’ Network against Hate Speech, calling for official measures to be passed this year. Since Tottori Prefecture passed Japan’s first anti-racial discrimination law in 2005, only to have social pressure force it to be un-passed months later (see “How to kill a bill,” Zeit Gist, May 2, 2006), this is indeed progress.

As far as JBC is concerned, the most important outcome of the Osaka ordinance is the normalizing of “naming and shaming.” Activists in Japan who have publicized, for example, the existence of establishments with “Japanese only” signs, have often been accused of acting “un-Japanese,” as if exposing racists is somehow uncouth in stoic, passive-aggressive Japan. Now Osaka has officially “Japanized” the act of pointing fingers and stigmatizing haters.

That will probably put paid to most of them, at least in the Osaka area. For those who spout hatred as a way of life, whose sociopathy has switched off any possibility of feeling shame, we will need more potent laws later, and on a national level.

But for now, let us celebrate this step in the right direction, and let cases and precedents sharpen future legislation accordingly, as they have in civilized countries worldwide. Thank you, Osaka. Who’s next?

Debito Arudou’s latest book, “Embedded Racism,” is available from Amazon, or directly from the publisher with 30 percent off. See www.debito.org/embeddedracism.html. Twitter: @arudoudebito. Your comments and story ideas: community@japantimes.co.jp