A Study on Hate Speech Based on Race, Ethnicity, and Religion : Focusing on the Case Law of the European Court of Human Rights

This paper aims to analyze the harmful effects of hate speech based on race, ethnicity, and religion on targeted groups and social integration, and to explore constitutionally justifiable standards for regulating such speech. In particular, it focuses on the case law of the European Court of Human Rights (ECtHR). The ECtHR excludes extreme forms of hate speech that threaten the core values of the Convention—such as tolerance, social peace, and non-discrimination—from the scope of protection under Article 17 (prohibition of abuse of rights). For other expressions, it applies a proportionality review under Article 10(2), assessing whether the restriction is “necessary in a democratic society.” This paper systematically analyzes the main assessment factors articulated by the Court in cases such as Pavel Ivanov, Belkacem, and Sanchez, including the context of the expression, the speaker’s intent and status, and whether the expression contributes to public debate. These criteria offer significant implications for the constitutional evaluation of hate speech in South Korea, particularly regarding expressions targeting immigrants and religious minorities, which are on the rise. The Korean Constitution guarantees freedom of expression while also affirming human dignity as a fundamental right. Therefore, restrictions on hate speech should not be understood solely as infringements on free speech. Rather, they may be viewed as a legitimate means of balancing rights in order to preserve democratic order and community integration in a multicultural society. Through an analysis of major ECtHR rulings on hate speech, this paper seeks to examine the constitutional standards for determining the permissibility of such restrictions.