This summer, the CRTC ignored the law it was mandated to enforce and condemned the use of a word in the title of a book without even bothering to consider the context. In a similar vein, the Osheaga Festival felt compelled to apologize because a guest rapper wore a shirt denouncing fascism, but… which featured a swastika… This refusal to consider the context of words or images is one of the main obstacles to putting in place measures to combat harmful language online or elsewhere.
Taking the context into account is a condition for the possibility of debate and discussion. Words can hurt, humiliate or exclude. But the refusal to consider the context of the utterance of a word or the dissemination of an image constitutes a serious threat to freedom of expression. It is impossible to apply any rule limiting expressive activities if it is assumed that the context of the utterance of a word or the dissemination of an image is irrelevant.
The norms for the use of language reflect the evolutions that are manifested in terms of sensitivities. These reflect changes in the recognition of certain realities. For example, in 2022, a reasonable person will not erroneously use words that carry a painful charge for people belonging to racial minorities. While at the beginning of the XXe century, some words now considered pejorative were recorded even in official documents, it is now accepted that a reasonable person should use them with a minimum of precautions.
It is legitimate to criticize someone who chooses to express themselves as we did several decades ago by ignoring the painful meanings of certain words or certain images. Everyone has the ability to reproach a person who expresses himself in an awkward way.
On the other hand, the public authorities can only punish comments that contravene a rule of law, that is to say a known rule enacted by elected officials. The practical ability to enforce laws requires looking at the context of words and images. When freedom of expression has constitutional value, it is essential to agree on the reasoning by which it is determined whether a statement has exceeded the limits permitted by law. This is impossible if we do not take the trouble to consider the context in which a statement is made.
In fact, all the laws that punish or prohibit remarks prescribe looking at the context of the statement. Under the law, there are no words or images that would be prohibited under any circumstances. But depending on the context, the use of a word may prove to be wrongful under the law. For example, the law differentiates between shouting at a person with the n-word preceded by the word “dirty” and quoting the title of a book containing the word.
This is why the call for sanctions for having uttered a word or exhibited a sign without regard to the context is a distressing indication of the deterioration of the conditions which make it possible to apply the limits to expressive freedoms. It is an obstacle to the possibility of debate.
Target malicious speech
How does the fact of overwhelming those who express themselves without any malevolent intention make it possible to advance the fight against harassment, exclusion and discrimination? Rather, it is to be feared that this will contribute to legitimizing the positions of those who oppose the introduction of proportionate measures intended to combat truly abusive remarks.
Here and in other countries, public authorities are preparing to put forward legislative measures to combat racist, homophobic or sexist harassment and intimidation, particularly in online environments, where it is a plague. Some are quick to cry censorship as soon as such measures are put forward. As an example, the sanctions imposed or demanded against those who make a perfectly legitimate use of certain words are brandished.
In a society that recognizes freedom of expression, it is essential to distinguish malicious use from legitimate uses of words and images. Laws limiting freedom of expression can only be applied by examining the context in which the words are spoken and the images broadcast. Ignoring this leads to censorship when a person starts saying that certain words are offensive to him. It is incompatible with freedom of expression.
It is legitimate to recall, as we do each time a controversy breaks out, that words are associated with suffering and are too often used in a malicious context. But while we wear ourselves out multiplying condemnations for words and images taken out of context, the hateful remarks — the real ones — continue to rage. Confusing contemptuous comments with those disseminated without malicious intent contributes to delegitimizing the implementation of effective measures against truly harmful comments. It is the victims of racist, sexist or homophobic harassment who pay the price for this refusal to consider the context of words and images.