The tendency to disseminate insulting remarks towards a public figure or his entourage revives interest in the subject of the rules which sanction insult. Insulting a person is a fault in Quebec law. A few days ago, we saw on a social network contemptuous, gratuitous and rude comments aimed at the mayor of Quebec. Comments that have the attributes of insults. With the facility conferred by online communication to launch insulting remarks, judges must be able to quickly assess the remarks disseminated online with regard to a person and possibly to sanction those which constitute a fault of ‘insult.
Since the dawn of time, contemptuous remarks have been made towards people, those we know personally or who move in the public space. Our laws recognize that insulting a person is a fault that can give rise to an order to repair the harm caused. But the cumbersomeness of the processes intended to assess the wrongful nature of the remarks and to punish them has the consequence of providing virtual immunity to those who utter insults.
Non-factual statements
Damage to reputation takes the form of a precise imputation of facts that can be proved. Rather, an insult is a statement that is not based on a verifiable fact. Insult concerns remarks that hurt the victim, which cause him harm that he feels in his heart of hearts without necessarily diminishing the esteem he enjoys with his entourage or the public.
The courts have had to judge the offensive character of expressions such as “thug”, “mad dogs” or even “cursed madwoman”, “cursed female dog” and “great hypocrite”. The common feature of such epithets is that they do not impute any fact to the person who is the subject of them.
In a decision that sets precedent, the Court of Appeal explains that it is necessary to distinguish insulting remarks from critical comments that can be derogatory. The analysis of remarks must take into account the whole of the context in which they were expressed and not dissect sentences, surgically extracted from the whole of a speech. Such an analysis must take into account the fact that “courts are not arbiters of courtesy, politeness and good taste”.
It is therefore necessary to decide between what constitutes insult and what is uncivil commentary. You have to put yourself in the shoes of an ordinary citizen who understands that you can express critical comments about a person. For example, calling a person in a public role pretentious is not really abusive language; a public figure cannot please everyone and, if perceived by some as pretentious, it is in itself legitimate to share such impressions.
By contrast, tossing pejorative qualifiers like “cursed (sic) gang dirt” and “cursed (sic) gang of dogs” targeting individuals is rather an excess of offensive language. For example, in a case involving a commentator who had called an association leader “pelota, cursed ball, cursed ball of shit, cow, cursed cow, slut, female dog, cursed female dog”, the Court of Appeal saw an abusive, vulgar and misogynistic rant. The epithets had crossed the threshold of the intolerable. They were no longer legitimate commentary, but vicious attack, affront and malevolence.
Insult may be a reprehensible act, but it is rarely the subject of legal action. It costs so much to seize a judge that many are resigned to endure it. The judicial system seems ill-suited to deal with it and punish it at reasonable cost and within a reasonable time.
The context of online environments exacerbates the need to upgrade the legal mechanisms intended to effectively sanction the fault of insult. The ability to slander widely puts the dignity of ordinary people and celebrities at risk. Making the courts able to deal effectively with crimes that are committed online is one way to bring our laws up to speed with the challenges of online communication.
This is why it seems appropriate to provide that such civil legal remedies take place online. An approach of this type is moreover recommended with regard to disputes involving consumers. A recent report by the Union des consommateurs identifies the problems of access to justice and recommends the establishment of an online consumer court. Such online courts exist in British Columbia and Ontario to deal with certain civil matters, including condominium disputes. The need for such cybercourts appears just as urgent in order to sanction, in a timely and affordable manner, wrongful behavior occurring online.