Canadian Court Ponders If A Disagreement On Twitter Constitutes Criminal Harassment

from the yikes dept

Free speech debates can often get tiresome online (for fairly obvious reasons), but it continues to astound me how people seem to think that there should be some sort of obvious exception to free speech rights for speech they don’t like — and that there won’t be any unintended or dangerous consequences from simply outlawing the speech that they dislike. To me, that belief is dangerous, though obviously people should be allowed to make their arguments for it. Up in Canada — where they don’t have a First Amendment like we do here in the states — there’s a fascinating and very troubling case happening that shows the dangerous path that you go down when you start saying things like “offensive speech” should be illegal. The determination of “offensive” is incredibly subjective.

The case here appears to be over a Twitter spat between a few individuals, who clearly don’t much like each other. That said, the spat appears to be not dissimilar from the many, many Twitter spats that happen each and every day. I’m pretty sure I’ve had Twitter debates as bad, if not worse, than what happened here, and the idea that such a debate could lead to possible criminal charges and jail time is fundamentally crazy.

And the deeper you dig into the details, the more and more bizarre the case itself gets.

There are three main players: Greg Elliott, who is facing the harassment charges. Then there’s Stephanie Guthrie and Heather Reilly, who both brought the charges (with a third woman who is no longer involved). The story started in 2012 when someone else entirely, Bendilin Spurr, created a ridiculous distasteful game that allowed players to punch out a well-known woman (who I’m not even going to bother naming here, because, honestly, the mere mention of this person’s name automatically makes comments divide into angry warring factions where reasoned debate disappears — and I ask folks, before commenting, to think carefully about if it’s worth going down that ridiculous rabbit hole — on any side). Given that parenthetical notation I just had to make, not surprisingly, some people got quite upset about this very stupid game. Among the people angry about the game was Guthrie, who apparently went on Twitter and got people riled up about all of this:

Guthrie testified earlier at this trial, which has been on and off since January, that she asked the Twittersphere what to do.

?Should I sic the Internet on him?? she asked, and it was almost rhetorical, so swift and predictable was the resounding reply.

So she Tweeted ?to prospective Sault Ste. Marie employers? and the local newspaper a link to a story about the game, asked Spurr ?Do you punch women in the face IRL (in real life) or just on the Internet?? and asked her Twitter followers to retweet the whole shebang.

Some people supported Guthrie, others did not and responded angrily, including threats of bodily harm and all sorts of other crazy vitriol. Because internet. And immaturity. From the sound of it, many of the responses to Guthrie were, indeed, horrifying and disturbing.

Now that brings us to Greg Elliott. He knew Guthrie a bit (and not just online), and he disagreed with Guthrie’s apparent plan to shame Spurr, and so he created what appears to have been something of a counter campaign to speak out against Guthrie’s campaign.

Elliott?s contribution to this dialogue was to remark, mildly in the circumstances and fairly I thought, that the online attack led by Guthrie and friends upon Spurr ?was every bit as vicious as the face-punch game,? and to point out that since Spurr had only 11 followers at the time, Guthrie?s efforts could backfire and draw even more attention to his wretched video game.

Elliott was also concerned about the real-world effects on a 24-year-old, or, as he wrote at the time, ?A guy makes a face-punch game which offends you and you want him destroyed??

Twitter debate then ensued, and it may have gone somewhat overboard in total volume of tweets, but everyone appears to agree that at no point did it descend into threats from Elliott to Guthrie. Just very vocal disagreement.

So let’s pause here, for a second, and recount what happened:

  1. Spurr, angry about certain person, creates ridiculous “game” allowing people to punch out said person. This seems incredibly immature, but is an expression of speech.
  2. Guthrie, reasonably upset about this game, convenes people online to speak out against Spurr and to try to limit his chances for future employment. In other words, counter speech. Again, some might argue (as happened in point 3 below) that deciding to ruin someone’s life because they created a stupid immature game is going a bit far, but this is still speech and counter speech.
  3. Elliott challenges the soundness of such a broad attack on Spurr, noting that online vigilantism can go too far, and could backfire (giving silly immature game more attention). Counter speech to the counter speech that isn’t defending the stupidity of the original game. They (and others) begin to debate on Twitter and that debate gets ugly and ridiculously childish at points but at no point resorts to any sort of threats.

At this point, all of this seems perfectly reasonable. People are disagreeing online, and speech and counter speech is happening. There are all sorts of things on the side that people can be concerned about (the idea to create such a stupid game in the first place, the power of mob justice to overreact, the insults, the more insults, etc.). But, again, this is all just your standard everyday internet argument.

And yet… somehow out of all of this: Guthrie (and others) end up charging Elliott with harassment. And then there’s Reilly. Apparently in the midst of all this, she got engaged in the debate which ended up like so many debates on Twitter:

?@greg_a_elliott Please do me a favour & not reply to my posts. You don?t follow me- were you creeping the #TOpoli tag to find my tweet?? she tweeted on Aug. 9, 2012.

?.@ladysnarksalot how?d you feel if I was so delusional to ask you to not retweet me? You want ?control? use your email, not Twitter. #TOpoli,? @greg_a_elliott replied, after suggesting that Reilly didn?t understand the point of Twitter.


The exchanges became increasingly hostile that month, with @greg_a_elliott tweeting that Reilly was a ?hateful b?tch? and accusing her and other women he dubbed ?#fascistfeminists? of ganging up on him, Reilly said.

He also posted tweets like ?Heather?s fat ass gets fatter? with the #topoli hashtag but without mentioning her Twitter handle in the tweet (known as sub-tweeting), the court heard. Sub-tweeting meeting the other Twitter user mentioned won?t be automatically notified that he or she is being discussed.

It appears that most of Elliott’s tweets are still online. Guthrie’s and Reilly’s are now private. You can see the start here, though there are many examples of friendly tweets between Elliott and Guthrie prior to this happening. Amazingly, with a little searching online, it is possible to find a spreadsheet cataloging all the tweets between the two of them. And, again, at times the insults start flying, but at no time does it appear to be threatening. Hell, it’s hard to see how it’s harassing. It’s people expressing opinions (often angrily).

In that list you can see that the angry tweets start on July 7th of 2012 and then continue for a few months. Guthrie appears to ask Elliott to “stop contacting” her (and others asked him to do so as well) and even though they blocked him via Twitter’s block feature, he sent a few more tweets their way, responding to some of the things they said. And, on the basis of that, they brought the harassment claims.

Elliott’s lawyer has pointed out that it certainly appears that a bunch of Guthrie’s friends were just as open to verbally sparring with Elliott — and if his statements were somehow criminal harassment, then theirs should be as well.

A key point in all of this is that, apparently, the Canadian law in question requires the victims to “reasonably, in all the circumstances, to fear for their safety.” That seems like a problematic standard for a variety of reasons, but it’s very difficult to see how the bar was met here. As the original link above notes:

Yet Guthrie and Reilly didn?t behave as though they were remotely frightened or intimidated: They convened a meeting of friends to discuss how Elliott should be publicly shamed; they bombarded their followers with furious tweets and retweets about him (including a grotesque suggestion from someone pretending she was a 13-year-old that he was a pedophile); they could and did dish it out.

?They were not vulnerable,? Murphy said once. ?They are very accomplished, politically savvy women. If they can?t handle being mentioned in the tail end of a political discussion (on Twitter), then they?re in the wrong business.?

As Elliott’s lawyer noted, this is all “a high school spat, except it?s adults on the Internet,” and the idea that a court should get involved and that there may be jail time at the end is flat out ridiculous.

It’s stories like this that should freak people out about the belief that it’s easy to ban “offensive” speech online. What one person takes offense to could be seen as totally reasonable by many others. In this case, it appears that there was a spat and everyone said and did some immature things, but to argue that one side is somehow guilty of a criminal offense over a Twitter spat is flat out crazy.

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Comments on “Canadian Court Ponders If A Disagreement On Twitter Constitutes Criminal Harassment”

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Mason Wheeler (profile) says:

Re: Re:

Who DOES that type of thing just because they disagree with someone? How the _expeletive_ does someone cross that line without realizing he/she is an objectively awful person?

It’s known as GIFT, though the psychological principles behind it date back at least as far as Plato. When people believe they are anonymous or that their behavior can’t be observed and directly traced back to them, their behavior tends to degenerate incredibly fast.

Sheogorath (profile) says:

Re: Re: Re:2 Re:

Actually, I’m not the exception, I’m the rule. Most people online are polite whether or not they are anonymous, the flamers and griefers are a very loud minority. The best weapon against online attacks is persistent identity, not real names. That way, you can police communities without exposing users to stalkers or outing trans people to their bosses, to give only two of the many examples.

mr. sim (profile) says:

the only person who should be charged is Guthrie and Reilly, who began a criminal conspiracy to harass someone and deprive them of their rights as a citizen. this crime was furthermore exasperated by a frivolous complaint to the prosecutor resulting in someone being detained by the police.

meanwhile the offended party incited what amounts to a criminal conspiracy, harassment, false allegations of child molestation and a half dozen other SERIOUS charges. and if the prosecutor were to be asked why they weren’t charged for these serious criminal acts, i bet the underlying implication was that they avoided arrest because they are women.

stay classy canada.

MBraedley (profile) says:

Um, Canada does have something similar to the 1st amendment

Section 2 of the Canadian Charter of Rights and Freedoms (part of the constitution) reads:

Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

That sounds an awful lot like what the the 1st amendment says. The only significant difference is that the charter rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Section 1). As far as I’m concerned it’s a small price to pay.

But, in the end, this isn’t a free speech issue, it’s a harassment issue, and the thought that a conviction “will have a chilling effect on people’s ability to communicate” is what’s ludicrous. There’s a line between a spirited debate and harassment, and from what I read in the article, he may have crossed that line. I don’t know, myself, if he did or not, and it’s not something that’s up to me, that’s up to the judge.

Anonymous Coward says:

Re: Um, Canada does have something similar to the 1st amendment

“But, in the end, this isn’t a free speech issue, it’s a harassment issue,”

Yep. By the description, Stephanie Guthrie and Heather Reilly were most definitely engaged in harassment. Guy makes a stupid game they don’t like, which won’t even be seen by it’s “target” unless someone points it out to her, and they organize an attempt to destroy his life.

Another guy attempts to point out that they’re not only likely to make the ridiculous “game” more well known (aka, the Streisand effect), but questions the morality of their attempt do destroy this guy. Guthrie and Reilly then proceed to organize attempts to destroy this critic, including some things that likely meet the definition of libel.

and the thought that a conviction “will have a chilling effect on people’s ability to communicate” is what’s ludicrous.

You don’t see how being able to imprison someone because they participated in a flame war that happened to take place on on social media, could chill speech? Every heated argument becomes something that charges could be filed over the moment someone happened to send a message after they’d been blocked (which is often how people learn that they’ve been blocked).

Re: says:

Re: Um, Canada does have something similar to the 1st amendment

Might I suggest you re-read the the part where the accusers were plotting to make the accused out to be a child molester? Who is harassing whom? It seems these are very aggressive and organized woman behind this suit.

Interesting they are hiding their tweets regarding the issue now isn’t it? Hope the court has a full copy of them so they can render an informed judgement of the contents.

Deimal (profile) says:

Re: Um, Canada does have something similar to the 1st amendment

“But, in the end, this isn’t a free speech issue, it’s a harassment issue, and the thought that a conviction “will have a chilling effect on people’s ability to communicate” is what’s ludicrous.”

No, what’s ludicrous here is the fact that this has to happen at all. For one, twitter is a service in which you can actively control who you can and cannot engage in a conversation with. If they no longer wanted to see what he was saying, they could block him. Or mute him. Or log the f-k out. Only, and I mean ONLY after such action is take if he attempts to circumvent it am I anywhere CLOSE to considering it actual harassment. If you can walk away and don’t, then you are CHOOSING to stay engaged in the conversation.

mattshow (profile) says:

Re: Um, Canada does have something similar to the 1st amendment

I’m assuming he’s being charged under s. 264 of the Criminal Code:

264. (1# No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection #2# that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

#2# The conduct mentioned in subsection #1# consists of

#a# repeatedly following from place to place the other person or anyone known to them;

#b# repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

A cursory research effort turned up only two cases where the constitutionality of this provision has really been challenged head on. In what is #to my mind# the most on-point of these cases, the judge said:

It is apparent that for s. 264#2#(b# behaviour to be criminal in nature the psychological integrity, health or wellbeing of the person must have been interfered with in a substantial way. To my mind, violence of this nature is a component of the offence. It would fall squarely within the exception stated by the majority in Irwin Toy and by the Court in Dolphin Delivery. The difficulty is the obiter dicta of Dickson, C.J.C. in Keegstra where after stating that the Court has not decided a case based on this exception to s. 2#b#, His Lordship goes on to interpret what was said in Irwin Toy as restricting the exclusion to a form of expression which is communicated directly through physical harm. In Keegstra the Court was concerned with the threat of violence implicit in hate literature. His Lordship found that the type of communication restricted by s. 319#2# could not be considered as violence nor analogous to violence. We are not dealing with a threat in considering s. 264. Rather, we are concerned with direct psychological violence and resulting harm. I have difficulty with the notion that direct psychological harm, which, as Cory, J. pointed out, is often “more pervasive and permanent in its effect than any physical harm” and can be every bit as damaging to a person’s well-being, would not fall within the exception as stated in Irwin Toy. To my mind, the cause and effect contemplated by s. 264 goes well beyond a “threat” of violence.

I agree with what Craig, Prov. Ct. J., in R. v. Hau, [1994] B.C.J. No. 677, Paragraph 11, said, though when he uses the term violence I believe he has physical violence in mind.

“I conclude that Section 264 clearly expands our criminal law to deal with anyone who harries another to the extent that it brings about a reasonable apprehension of violence. The stalking of another person intrinsically involves potential violence and its social consequences are appalling.
When a person knowingly or recklessly engages in conduct specified in Section 264#2#, resulting in a reasonable apprehension of violence, there can be no exculpation by characterizing such conduct as a legitimate exercise of the freedoms guaranteed in Section 2 of the Charter. Those freedoms are not absolute and were not intended to justify latently violent conduct. Moreover, in our democratic society, the freedoms in Section 2 must never serve to diminish a person’s right to be free from and protected against violence, or the threat of violence brought about by harassing conduct.”

Thus, I find that the type of expression which may flow from behaviour as contemplated by s. 264 is not protected by s. 2#b# of the Charter.

#From the trial decision in R. v. Sillipp, I’d link it but I can only find the appeal decision on non-paywalled sites#.

So basically, according to that judge, this law is constitutional because in order to get caught by it, you have to repeatedly communicate with someone while knowing that your communications are interfering with their psychological integrity, health or wellbeing. That’s a form of violence and violence isn’t protected by the Charter right to freedom of expression, therefore no constitutional issues to here.

My guess is the judge in this new case will adopt that standard, say the defendant doesn’t mean it and find him not guilty without getting into any further discussion as the constitutionality of this provision.

Re: says:

Re: Re: Re:

Please outline YOUR definition of Free Speech and explain why this law suit is not a violation of said definition. Please do same for the term Harassment and explain why this law suit is a violation of said definition.

Looking forward to your reply, please do not take these requests personally; I really am interested. Citation brings extra points.


Anonymous Coward says:

Its pretty depressing how many people say “this is why feminists suck!” and such over this. It’s like people will latch onto any reason to attack women like myself who are feminists by using the worst examples of women abusing processes.

Canada does not have the same kind of free speech as the US, so this course is about both free speech in general as well as the harassment law. The harassment law is extremely overbroad, and this ruling could gut it entirely as it will have to address language and the specifics of whats needed to go to jail.

I really hope he goes free, it’s shameful that it’s gone on for as long as it has because 2 years for a case like this is insane. Jail time for the tweets in this case would be a travesty. Guthrie and co should be paying him a hefty amount for how they’ve treated this case and abused the process of law for 2 years.

Anonymous Coward says:

Re: Re:

The sad state of affairs is that feminists like this are the ones that get noticed, because it makes for good click bait. (Or the people that are already celebrities for other reasons)

And sadly this kind of “internet activism” is getting bigger and louder, with people taking up good causes like anti-racism or feminism and believing it gives them the right to be assholes or bullies to “justified” targets.

And worse, the nature of internet mobs is that if you call out someone who is under a banner of a good cause, there are people who only care about the banner, and ignore the terrible behaviour.

nasch (profile) says:

Re: Re:

It’s like people will latch onto any reason to attack women like myself who are feminists by using the worst examples of women abusing processes.

People will latch onto any reason to attack a group they don’t approve of.

This is why suck!
This is why suck!
This is why sucks!
This is why suck!

This case just happened to involve some feminists.

Anonymous Coward says:

“Its pretty depressing how many people say “this is why feminists suck!” and such over this. It’s like people will latch onto any reason to attack women like myself who are feminists by using the worst examples of women abusing processes.”

Same problem as with GamerGate&Co: Because the “good examples” don’t say anything. I don’t see the protests of feminists shouting “THAT isn’t feminism!”.

Of course, it is completely understandable WHY this doesn’t happen. There are bad reasony why and good reasons why. But still, the effect is that a) some feminists do shit and b) the rest does not protest, thus c) people think all feminists support that.

Anonymous Coward says:

Re: Re:

“Because the “good examples” don’t say anything.”

Part of the problem with the internet and social media, is it’s easy for the “good” examples to not say anything simply because they don’t see it. Someone posting on say Reddit for a given side of a debate shouldn’t have to justify not shouting down “bad” examples on twitter. Yet people will do just that, and tell someone on Reddit, or Facebook, or pretty much any other media that they should be responsible for the actions and words of the person on twitter. Even though the discussion is taking place in a different medium, and the person doesn’t use twitter.

Wendy Cockcroft says:

After everything I’ve said on this subject, when the hell did merely disagreeing with someone become harassment?

Methinks the lady doth project too much; she wanted to sic the internet on this Spur fellow for making a tasteless game, then she wanted to shame Elliott for disagreeing with her. I’ve seen this before, it’s what I call Social Justice Authoritarianism. They believe they have the forces of morality and righteousness behind them and have pretty much turned into an Internet Inquisition, with all that entails.

As far as I’m concerned you don’t get to cry harassment until

1. you can’t set foot anywhere online (or in real life) without being dogpiled by people who are determined to believe bad things about you so they can justify having a go at you

2. you can’t open your inbox without seeing a torrent of vitriol from apparently multiple sources

3. these creatures follow you everywhere you go online till you’re forced to give up the internet to keep it out of your hair

4. it goes RW and you get grief at work over something that happened online

5. you get doxxed, etc.

Just sayin’. /End rant

Chris BIngham (profile) says:

Anyone but me

“Mr. Murphy then suggested that what Mr. Elliott had been doing was defending himself, and his views, when he was being attacked on Twitter by her and the other complainants. Wasn’t he entitled to do that?

“He’s entitled to defend himself to the world, Mr. Murphy; he’s not entitled to do it to me.”

“No matter what you say about or to him?” Mr. Murphy asked.

“Not to me,” she said.”

It boggles the mind.

Anonymous Coward says:

“People will latch onto any reason to attack a group they don’t approve of.”

That’s the point. It happens to everyone. To atheists, to christians, to the conservative, to the liberal, etc. If one of your “group” does something bad, people will try to pin it on the group. You can try to minimize the damage by protesting loudly against the person doing bad things, but of course that’s no protection. It’s not about “feminists” being bad, it’s about a single woman (or two) who also happen to identify themselves with feminism somehow. That they are doing more harm than good for a worthy cause here is an unfortunate sideeffect of them being assholes.

Anonymous Coward says:

It’s a bit more than a “disagreement on Twitter”. According to this article on Canadaland:
“Elliott is not on trial for having a difference of opinion with someone. He is on trial for criminal harassment. He tried repeatedly to contact Guthrie even after she had explicitly asked him to leave them alone. He monitored Guthrie’s movements via Twitter, shadowed events she attended, and flooded any hashtag she participated in. He made it clear that he was following her every move by publicly commenting on her tweets, even after she had blocked him. He sent messages to people who interacted with her online, making it clear that he was observing everything she did.

Elliot, as the Toronto Star reported, is further charged with breaking a peace bond for doing these things.

Whether all of that constitutes criminal harrassment or not is what the court will determine. But you wouldn’t know it from Blatchford’s latest article, in which none of these facts are mentioned.”

Dan Perrins (user link) says:

Re: Re:

The article you mention was written by Guthrie’s long time friend Anne Thériault. So her views are subjective to say the least.

For a good understanding of what actually happened I’d suggest reading both closing arguments.

Unfortunately we only have 1 of them to read through as the Crown (our version of a district attorney here in Canada) elected not to make their final submission public.

Gregory Elliott’s final arguments;

The testimony I find extremely damning is here on pg 3;

Q. You knew that … you knew personally that Gregory Elliott was responding to defend himself?

A. He’s entitled to defend himself to the world, but not to me.

Q. Okay.

A. He’s not entitled to an audience from me, Mr. Murphy.

Q. Okay. And that’s what it comes down to, would you agree with me, that you don’t believe that Mr. Elliott is entitled to defend himself to you?

A. To me. Yeah … no, I don’t believe he is.

Q. Right. Okay. No matter what you say to or about Mr. Elliott, agreed?

A. There were a lot of people who backed me up on what I said about him, a lot of people, Mr. Murphy.

Q. Two of whom are …

A. Two of the dozens, yeah.

Q. Two of whom are the complainants in this case, right?

A. Yes. Yes.4

8. By tweeting to, and about, Mr. Elliott – but yet at the same time demanding that Mr. Elliott not respond to her – it appears as though Ms. Guthrie had expected that the Twitter Rules would apply to everyone except her.

No Threats, Libel, Sexual Content

9. Ms. Guthrie confirmed that, as far as she was aware, Mr. Elliott never sent her a tweet that was libelous, threatening, or sexual in nature.5

10. Ms. Guthrie also confirmed that, aside from her business dinner on April 18, 2012, she never saw him again.6

11. Ms. Reilly, too, confirmed that Mr. Elliott never sent her a tweet that was sexual in nature, and she had never seen Mr. Elliott in person until she saw him in Court during the trial.7

Guthrie mentions dozens who agreed with her and yet it was only 2 of her friends who filed complaints. Both of whom are in the Women in Toronto Politics organization and I believe as well involved in her Drunk Feminists on Film group.

What Guthrie just admitted to under testimony was that she had harassed Greg and expected him not to respond. She believed herself to be beyond the rules of both twitter and common sense.

And now Guthrie is using a legal maneuver in attempt to bully someone who disagreed with her and her cult into silence.
Standard M.O. for the Toronto area feminists.

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