1- Imane KHELIF has lodged a complaint with the Public Prosecutor for acts described in the complaint as “aggravated cyberharassment”.
2- “ Cyber-harassment ” is defined and punished by article 222-33-2 of the French Penal Code, which states :
Article 222-33-2-2
The act of harassing a person through repeated comments or behavior with the aim or effect of degrading their living conditions, resulting in an alteration in their physical or mental health, is punishable by one year’s imprisonment and a €15,000 fine when these acts have caused a total work disability of less than or equal to eight days, or have not resulted in any work disability.
The offence is also constituted
a) When these remarks or behaviors are imposed on the same victim by several persons, in concert or at the instigation of one of them, even though each of these persons has not acted repeatedly;
b) When these comments or behaviors are imposed on the same victim, successively, by several persons who, even in the absence of concerted action, know that these comments or behaviors characterize a repetition.
The acts mentioned in the first to fourth paragraphs are punishable by two years’ imprisonment and a fine of €30,000:
1° When they have caused a total work incapacity of more than eight days ;
2° When committed on a minor;
3° When committed on a person whose particular vulnerability, due to age, illness, infirmity, physical or mental deficiency or pregnancy, is apparent or known to the perpetrator;
4° When committed through the use of an online public communication service or through a digital or electronic medium; (emphasis added)
4° bis When committed against the holder of an elective mandate;
5° When a minor was present and assisted.
The acts mentioned in the first to fourth paragraphs are punishable by three years’ imprisonment and a €45,000 fine when committed in two of the circumstances mentioned in 1° to 5°.
3- The aggravating circumstance referred to by Imane KHELIF is undoubtedly that of article 132-77 of the French Penal Code, which states that :
Article 132-77
When a crime or misdemeanor is preceded, accompanied or followed by words, writings, images, objects or acts of any kind that either harm the honor or consideration of the victim or a group of people to which the victim belongs because of his or her actual or supposed sex, sexual orientation or gender identity, or establish that the acts were committed against the victim for one of these reasons, the maximum custodial sentence incurred is raised as follows:
(…)
7° It is doubled when the offence is punishable by up to three years’ imprisonment.
The present article does not apply to offences under articles 222-13,222-33,225-1,225-4-13 and 432-7 of the present code, or to the eighth paragraph ofarticle 24, the third paragraph ofarticle 32 and the fourth paragraph ofarticle 33 of the law of July 29 1881 on freedom of the press, or when the offence is already aggravated either because it is committed by the victim’s spouse, cohabitee or partner bound to the latter by a civil solidarity pact, or because it is committed against a person in order to compel him or her to enter into a marriage or union, or because of his or her refusal to enter into such a marriage or union.
4- The sentence incurred for the offence referred to in the complaint is therefore four years imprisonment (one year in article 222-33-2-2, increased to two years by aggravating circumstance number 4 (use of a means of electronic communication) doubled by the aggravating circumstance of article 132-77). In this case, even if convictions were handed down for harassment (an unlikely hypothesis, see below), not only is it certain that this maximum would never be reached, but it is even likely that there would be no firm prison sentence at all.
5- It is important to understand that the complaint does not refer the case to a Tribunal, but to the Public Prosecutor’s Office, which for the moment has launched an investigation, but has not referred the case to the Tribunal.
6- In addition, the Public Prosecutor’s Office is not bound by the characterization of the facts chosen by the complaint, and can give them another characterization.
7- This appears to be the case, since according to Le Monde(https://www.lemonde.fr/afrique/article/2024/08/14/plainte-d-imane-khelif-le-parquet-de-paris-ouvre-une-enquete-pour-cyberharcelement-aggrave_6280694_3212.html), the Public Prosecutor’s Office is not only targeting cyberstalking, but also the offences of “public insult on the grounds of gender, public provocation to discrimination and public insult on the grounds of origin”.
8- In this case, the qualification of “cyberharassment” chosen by Imane KHELIF is questionable: case law consistently verifies, in order to characterize this offense, that the behavior must have had “ as its object or effect a degradation of the victim’s living conditions resulting in an attack on his physical or mental health ” (See in particular the decision of the Court of Cassation of May 9, 2018, n° 17-83.623 https://www.legifrance.gouv.fr/juri/id/JURITEXT000036947023)
9- The “object” of deterioration of living conditions is probably not met. This would correspond to the idea that the purpose of the disputed tweets was to degrade Imane KHELIF’s living conditions. However, it could certainly be argued that the purpose of these tweets was to create a polemic – whatever one’s opinion of this polemic – and not to harm Imane KHELIF’s life.
10- The “effect” of worsening living conditions would correspond to the result. Given the success of the Olympic Games, it’s unlikely that any damage to physical and mental health could be sustained immediately after the tweets. It will have to be seen whether such a deterioration can be demonstrated in the longer term, but this seems difficult.
11- The other qualifications envisaged by the Public Prosecutor’s Office (“public insult on the grounds of gender”, “public provocation to discrimination” and “public insult on the grounds of origin”) are likely to be established in the tweets of anonymous persons, subject to their consultation. They are not constituted in the tweets of Elon Musk or J.K Rowling, as the claim that Imane Khelif is a man is not offensive under French law. (Had it been claimed that Imane Khelif cheated, it would have been potentially defamatory, it being pointed out that insult and defamation are two different offenses).
12- To be complete on the penalties incurred:
– Public insult on the grounds of gender or origin: 6 months’ imprisonment and 22,500 euros fine (article 33 paragraph 3 (origin) and 4 (gender) of the July 1881 Freedom of the Press Act).
– Public incitement to discrimination: one year’s imprisonment and 45,000 euros fine (article 24 of the July 1881 Freedom of the Press Act).
See above on the notion of penalties incurred
13- In any case, it is extremely unlikely that J.K ROWLING and Elon MUSK will be convicted, or even called before the Tribunal at the request of the public prosecutor. Quite apart from the fact that “public insult on the grounds of gender”, “public provocation to discrimination” and “public insult on the grounds of origin” do not appear to have been established, prosecution will come up against an insurmountable obstacle. The French courts simply do not have jurisdiction in this case. In accordance with article 113-2-2 of the French Penal Code, “ Any crime or misdemeanor committed by means of an electronic communication network, when attempted or committed to the detriment of a natural person residing on the territory of the Republic or a legal entity whose registered office is located on the territory of the Republic, is deemed to have been committed on the territory of the Republic ” . In this case, the tweets by J.K ROWLING and Elon MUSK were sent from abroad. For French courts to have jurisdiction, Imane KHELIF would have had to reside in France, which does not appear to be the case (to be complete on this point, the fact that the comments are accessible in France does not characterize the jurisdiction of French courts: In the absence of any criterion linking the incriminated remarks to the territory of the Republic, the fact that they were accessible from the said territory by virtue of being broadcast on the Internet did not, on its own, characterize an act of publication in that territory, making the French judge competent to hear the case. Court of Cassation ruling of July 12, 2016 https://www.legifrance.gouv.fr/juri/id/JURITEXT000032900131/)
14- To be quite complete on the jurisdiction of French Courts: the interest of the notion of “cyberharassment”, for Imane KHELIF, is to try to mix the acts of J.K ROWLING and Elon MUSK in “repeated” behavior (within the meaning of article 222-33-2 paragraph b, see above) with those of French tweeters, to make a global offense allowing to prosecute everyone. This is extremely far-fetched.
15- In the probable absence of any effective prosecution by the Public Prosecutor’s Office of J.K ROWLING and Elon MUSK (i.e. a summons to appear before the Tribunal, and not simply an investigation), the only possibility for Imane KHELIF to force them to appear would be to have them summoned directly before the Tribunal. For all the reasons mentioned above, it would be unlikely that such a move would result in a conviction.
16- Ultimately, it is possible that the current investigation will result in the prosecution of some of the anonymous authors of the most virulent tweets. In the event of a conviction, “ public insult on the grounds of gender, public provocation to discrimination and public insult on the grounds of origin” are probably more appropriate than “ cyberharassment”. On the other hand, the complaint, insofar as it targets J.K ROWLING and Elon MUSK, seems unlikely to succeed.