Can the offence of insult include all racist statements?

As an extension of Act No. 2017-86 of January 27th 2017 on equality and citizenship, the decree of August 3rd 2017 amending certain provisions of the Penal Code was published in the Official Gazette on August 5th 2017.

Born out of a desire to increase the penalties for non-public manifestations of racism, sexism or homophobia, this decree strengthens the repression of the offences of provocation, defamation and non-public insults of a racist or discriminatory nature.

An insulting statement, even if made in a meeting or public place, constitutes the offence of insult only if it has been “uttered” in accordance with article 23 of the Press Act; in other words, it is made aloud in circumstances where there is a desire to make it public.

The March 2005 decree had established non-public offences, punishable simply by a fine, a fine considerably less onerous than public offences.

From now on, the decree of January 27th 2017 establishes these offences of provocation, defamation and non-public insults as fifth class offences, doubling the amount of the fine from 750 euros to 1,500 euros or 3,000 euros in the event of a re-occurrence.

In addition, the offences of provocation, defamation and non-public insults may give rise to additional penalties.

In this respect, two new measures with complementary penalties, namely community service for a period of between 20 and 120 hours and the obligation to complete a citizenship internship.

Consequently, any racist statements made in the private or family context may be the subject of legal proceedings…

However, in a judgment of November 19th 2018, the Tribunal of Paris had the opportunity to clarify the notion of non-public insult.

It considered that, in order to constitute a violation of a non-public insult, the statements must have been uttered with a minimum of publicity as having been pronounced before one or more third parties or as having been distributed by mail, see electronic mail to at least one other recipient other than the person being insulted.

Moreover, freedom of expression may be enforced in the context of this offence, especially in the private and family context.

While the spectre of the offence of insult has widened, one may nevertheless wonder about the effectiveness of these measures when it comes to taking into consideration the criteria for assessing the case law to qualify this offence but also the possibility of seeing it come up against fundamental freedoms such as freedom of expression…