What does the law say?

Insult is defined by the law of July 29 on freedom of the press of 1881 as “Any outrageous expression, term of contempt or invective that does not contain the imputation of any fact” (art. 29 para. 2).

Thus, unlike defamation, insult does not impute a specific fact to a person (Cass. crim., December 7, 2010, n° 10-81.984).

For example, saying that someone is a thief can be an insult but not defamation because they are not accused of a specific theft. It is not always easy to differentiate between these two offenses and in cases where they are indivisible, defamation will prevail (Cass., crim. June 12, 1956).

Insult is also distinguished from outrage (see Decision 2021-896 QPC of April 9, 2021), punished under article 433-5 of the Penal Code, which targets threats, gestures or words addressed to a person holding public authority or charged with a public service mission, in the exercise of their functions or mission.

Private Insult

Depending on whether the insult is committed in public or in private, the sanction is more or less severe.
Private or non-public insult is that addressed to the victim without any third person being present, particularly by email or SMS, or that uttered by its author before a restricted circle of people who share the same interests, in the presence or absence of the victim. It constitutes an offense.

Public Insult

Public insult is an insult that can be heard or read by the public, it constitutes a misdemeanor. People likely to be witnesses may not be linked by a community of interest.

This is the case for insults uttered in the street, published in a newspaper or on the Internet, for example. In the latter case, if the insult is posted on a social network, it must be accessible to all to be qualified as a public insult.

For there to be a public insult, four elements must be present:

• An outrageous expression, a term of contempt or an invective: an apparently innocuous term can become insulting depending on the context.
• The terms apply to a person or a specific group of people. Thus, challenging a religion cannot constitute an offense of insult unless it challenges the believers themselves.
• The intention is to harm: the objective of the insult is to hurt the person to whom it is addressed, in their honor and dignity. There is a presumption of bad faith on the part of the person being prosecuted.
• There is publicity in the sense of the 1881 law: this is constituted for any word or cry “uttered in public places or meetings, or by writings, printed matter, drawings, engravings, paintings, emblems (…)” (art.23 para.1). In the case of direct publication, the offense is attributed to the author of the insult and in the case of indirect publication, i.e., when the statement is transmitted to the public by a third party, the offense is then attributed to the latter. This is generally the publisher or the publication director: they may therefore see their criminal liability engaged and the author of the statements may be prosecuted as an accomplice.

Racist/Discriminatory Insult

Paragraph 3 of Article 33 of the 1881 law determines a specific regime relating to public insults directed against a person or group of persons on account of their origin or membership or non-membership of a particular ethnicity, nation, race or religion.

Examples:

• “Go back to your country, you don’t belong here” (CA Riom, ch. corr., November 3, 2005);
• “Unaccompanied minors are thieves, rapists, murderers” (Paris Criminal Court, January 17, 2022).

Penalties

• The author of an insult uttered in private faces a fine of 38 euros (art. R621-2 of the Penal Code). The conviction is more severe if the offense is committed against a person because of their racial origin or religious affiliation: 1500 euros fine (art. R625-8-1 of the Penal Code).
• Public insult is punishable by a fine of 12,000 euros.
• The conviction is more severe in case of public racial insult which can be punished by a prison sentence of one (1) year and a fine of €45,000; the penalties are increased to three (3) years of imprisonment and a fine of €75,000 if the acts are committed by a person holding public authority or entrusted with a public service mission in the exercise or on the occasion of the exercise of their functions or mission (art 33 para.5 of the 1881 law).

For public insult and private insult of a racist nature, you must act within a year following the day when the writing or statements were issued or brought to public attention. For public or private insult that is not racist, the time limit to act is three (3) months.

Excuses for insult

Humor

The offense of insult can be “excused” when the statement falls within the framework of humor and political satire (Cass. crim. September 20, 2016, No. 15-82.944). To grant the benefit of the right to humor, the personality of the speaker can be examined objectively by the judge, namely whether they are a humorist or not, for example (TGI Paris, 17th ch., December 19, 2013, No. 313-11).

This right to humor stops when the statements infringe on the respect for human dignity.

Provocation

According to art. 33 para.2 of the 1881 law, “insult committed in the same manner towards individuals, when it has not been preceded by provocations, will be punished by a fine of 12,000 euros“, thus insult uttered by the victim who responds immediately and thoughtlessly to a provocation can be excused (Cass. Crim. Nov. 24, 2009). The recognition of the excuse of provocation implies the existence of a direct relationship between the insult and the provocation. But it is not up to the investigating judge to investigate the possible excuse of provocation in matters of insult (art. 51-1 of the 1881 law). Moreover, courts tend to dismiss the application of this cause of exoneration by various means, notably by invoking the lack of proportionality between the racial insult and the provocation (Cass, crim, April 1999 No. 98-81.625).

Judge’s assessment of insult

Insult can reside in a crude term as well as in a contemptuous or pejorative word, but sometimes words do not have this character.

The assessment of the insulting nature of a statement falls under the judge’s discretion and must be carried out depending on the context, and objectively, without being based on the personal perception of the victim (Cass. Crim., 20/2/1990, No. 89-80.483).

What to do if you are the subject of insults?

• If the statements are made on the internet, first to avoid their disappearance, you can have a bailiff’s report drawn up to provide evidence later or take a screenshot of the statements with the date and URL link.
• Take a screenshot of the comments following the insulting statements
• Then, you can have content removed from the internet, by making a request to the author of the content, then to the site host. Many hosts implement specific reporting mechanisms provided for this purpose.
• If the host does not remove the reported content according to its own procedure, you can make a report in a judicial framework by following the procedure and sending, in particular, a registered letter with acknowledgment of receipt.
• In case of urgency and obvious harm, you can ask the judge for an interim injunction to have content removed by the host.
• In case of insulting comments on the internet, you can also report it on Pharos
• You can file a simple complaint.
• You can directly file a complaint with civil party constitution in case of public insult.
• Certain associations can also file as civil parties for insults of a racist nature.
• You can choose the procedure by way of direct citation if the author is identified.
• You can call on Equitas who can provide you with legal assistance.

APPLICABLE REFERENCES

Art. 23 para.1, art. 29 para.2, art. 33 para.4, art.51-1 para.3 and 65 para.3 of the law of July 29, 1881 on freedom of the press; Penal Code: articles R621-2 and R625-8-1;

Case law: Court of Cassation, Criminal Chamber, December 7, 2010, No. 10-81.984; Court of Cassation, Criminal Chamber, June 12, 1956; Constitutional Council Decision 2021-896 QPC of April 9, 2021; Court of Appeal of Riom, Criminal Chamber, November 3, 2005; Court of Cassation, Criminal Chamber, September 20, 2016, No. 15-82.944; Paris Regional Court, 17th Chamber, December 19, 2013, No. 313-11; Court of Cassation, Criminal Chamber, April 1999, No. 98-81.625; Court of Cassation, Criminal Chamber, February 20, 1990, No. 89-80.483.