French prosecutors announced on August 14th that they had launched an investigation into the alleged cyberbullying of Algerian Olympic boxing champion, Imane Khelif, who was at the centre of a gender controversy at the Paris Olympics.

The case was filed ‘against X’ (contre X) – which is an option within French criminal law for the victim to assert their rights and file a complaint even when the identity of the perpetrator is not known.

However, the lawyer representing Khelif, Nabil Boudi, told Variety magazine that high-profile foreign figures such as British author JK Rowling and US-based Twitter owner Elon Musk – who had both tweeted about Khelif – were named in the complaint, adding that American presidential candidate Donald Trump could also be included.

The Paris Prosecutor’s Office confirmed that it has launched the investigation – via the Central Office for the Fight Against Crimes Against Humanity and Hate Crimes – for “cyber harassment due to gender, public insult because of gender, public incitement to discrimination and public insult because of origin”.

French law considers cyberbullying to be an offence punishable by a fine and up to 10 years of imprisonment, depending on the type of cyberbullying.

As for the category of ‘moral’ cyberbullying (ie intimidating and humiliating the victim through insulting messages, mockery, threats, etc.) the standard maximum penalty would be two years in prison and a €30,000 fine.

But do French courts have jurisdiction over foreigners?

While French authorities naturally investigate and prosecute crimes that happen in France – whether committed by French people or foreigners – the courts also have quite wide-ranging powers to investigate events that happen outside France.

READ MORE: What to do if you are arrested in France

French criminal jurisdiction is outlined in the French penal code (Articles 113-6 to Articles 113-14) and the basic principle, as explained by the French government’s Vie Publique website, is that “French courts have jurisdiction over crimes committed in France and, under certain conditions, crimes committed abroad, particularly when the perpetrator is French or the victim is French.”

This means that French courts can investigate if, for example, a French citizen is murdered abroad, or if a French citizen commits a crime outside France.

And it’s not just that they can – they often do.

One of the most high-profile – and complicated – recent examples is that of Frenchwoman Sophie Toscan du Plantier, who was murdered in Ireland in 1996.

After an inconclusive investigation by Irish authorities, the French courts took up the case on the basis that they could have jurisdiction thanks to the victim being a French national.

They charged a British man, resident in Ireland, named Ian Bailey with the murder, and held a trial in France. Bailey did not attend but was convicted in his absence and sentenced to 25 years in prison. However Irish courts refused to extradite him and Bailey died in Ireland earlier this year, still protesting his innocence. 

France will also prosecute its own citizens for crimes committed abroad where necessary, and has a policy of trying to get French jihadis who have left the country returned to France, and then prosecuting them.

As for when the French courts cannot get involved – The Local spoke with bilingual French lawyer, Sarah Valduriez, who has expertise in international and domestic litigation, as well as experience as an attorney at the International Criminal Court (ICC).

She said: “French courts do not have the power to prosecute a foreigner who is not on French soil, when there is no link to France.”

French courts also cannot get involved if a person has already stood trial and been found not guilty in another country.

What if no one involved is French and the crime happened outside France?

“In certain cases, the French courts have jurisdiction over crimes committed abroad by a foreign person against a foreign victim,” Valduriez said.

“This is known as ‘universal’ jurisdiction (compétence universelle), but the acts concerned must be war crimes or crimes against humanity.

“In order to prosecute, there must be a connecting link of the person’s residence in France, or their involvement in acts of genocide, or cases of torture provided for by the New York Convention of 10 December 1984 (without condition),” she specified.

The French legal expert explained that this exists in particular to “avoid France becoming a country that harbours war criminals”.

France also has special jurisdiction over perpetrators genocide or war crimes in Rwanda in 1994 or the former Yugoslavia in the early 1990s.  

“Since 2012, these crimes have been prosecuted by the ‘Crimes against Humanity, War Crimes and Offences’ unit, which is based at the Paris Court (Tribunal Judiciaire de Paris),” Valduriez explained.

As for other crimes against humanity, the lawyer said that four conditions must be met: “(1) the suspect is resident in France, (2) they are not the subject of an extradition request, (3) it is possible to establish dual criminality with the suspect’s state of nationality, and (4) the International Criminal Court has expressly declined jurisdiction.

“If these conditions are met, then the French Public Prosecutor may initiate proceedings on his own initiative or following a complaint from victims or associations with an interest in the case,” she said.

What about crimes committed online?

This is where we get to a grey area as it’s hard to define ‘where’ crimes are committed when it comes to online offences such as cyber-bullying.

It may be easier to imagine a case of physical assault being committed on French soil – for example a British tourist being punched by a Swiss tourist on the streets of Paris – then France would have jurisdiction.

As for the internet, it is a bit murkier.

Valduriez said it is not certain that French courts will end up accepting Khelif’s case, but by her estimates they hypothetically could.

This is despite the fact that Khelif is not a French national (she is Algerian), and neither are any of the high-profile figures mentioned in her lawyer’s criminal complaint. Khelif was, however, in France when the alleged offences took place – as she was competing at the Paris Olympics.

Valduriez explained: “Social networks are subject to the rules of the law of the host country, but damage done on the internet (ie defamation or cyberbullying) may be judged by the courts of the country in which the damage is considered to have occurred.

“This means that French courts would need to determine ‘the place of the offence’, and for this they look at the place of distribution.

“So, a French court may claim the jurisdiction, on the basis that France is the location of distribution, provided that the platform used is accessible in France and that the victim has interests in France, or that the disputed content is intended for a French audience.

“These criteria are an ‘either/or’, so any of them might give the court the ability to claim jurisdiction,” the lawyer said.

In Khelif’s case, the tweets were accessible from France and the boxer may be considered to have ‘interests in France’, as she was in Paris when the alleged cyberbullying took place.

Nevertheless, based on what Khelif’s lawyer told Variety, he implied that other countries would need to work alongside French authorities to investigate and hold people accountable for the potential offences committed on their soil or by their citizens.

Her lawyer told Variety that the complaint “could target personalities overseas” and that “the prosecutor’s office for combating online hate speech has the possibility to make requests for mutual legal assistance with other countries.”

Variety wrote that he specified “there were agreements with the US equivalent of the French office for combating online hate speech.” 

How do penalties work?

If a crime is investigated and the courts find someone guilty, then they can sentence the perpetrator, perhaps to jail time or a fine, depending on the crime.

For the victim to be compensated, they would have to request action civile. The judge may then require the perpetrator to owe the victim a payment, on the basis of the decision found in the criminal case.

If the perpetrator is outside France, then French authorities can request their extradition. Once in France, they would be subject to their sentence. Similarly, if they have assets in France these could be seized by French authorities.

Extradition may be refused by the other country, depending on the bilateral agreements in place, but the person convicted would not be able to enter French territory without risking that their punishment be applied.

As for enforcing court decisions, such as fines, in other countries, Valduriez said that an ‘exequatur’ would be required. This is a procedure that allows a decision issued by a foreign court to be executed in another country’s jurisdiction.

In all of these situations, the punishment depends on the crime, and if the person found guilty is outside of France, then enforcement will require some cooperation of the other country.