Last summer, we wrote about a troubling
criminal case up in Canada, exploring whether or not a Twitter fight constituted criminal
harassment. The details are long and complex and I tried to summarize them in the last post so if you want more details go there. However, the super short version was as follows:
- Angry person (not involved in lawsuit) creates a stupid, immature video game that allows users to punch another person (focused on someone who is controversial in certain circles).
- Some people who are angry about this game, convene other people online to speak out against the game, and to try to shame the developer (to the point of trying to block employment opportunities).
- Another person challenges the reasonableness of the attack in part 2, suggesting that the campaign goes too far.
That's the short version of it. Again, there's a lot more involved, but suffice it to say that two of the people who were involved in part (2) above, Stephanie Guthrie and Heather Reilly, felt that the guy who was behind part 3, Greg Elliott, went too far in his tweets in condemning their actions. As we noted none of the tweets appeared to involve actual threats -- just heated rhetoric, which is not uncommon in Twitter debates.
Thankfully, in a fairly long and detailed ruling, the court ended up dismissing all of the charges
. It's not, as some might loosely believe, a clear pass to allow harassment online in Canada, but pretty specific to the circumstances of this particular case. The judge first reflected on the nature of Twitter and free speech, including the use of hashtags, which was a central part of the issue raised in the case. A key point: that Twitter is a public forum, rather than a targeted one. And while you can do direct person-to-person communication, that's not it's main function. And it would be somewhat tricky to argue that people talking in a public forum are directly targeting someone just by using a hashtag they might follow.
Once someone creates a hashtag, anyone can use it. Everyone has to be able to use it freely; anything less will limit the operation of Twitter in a way that is not consistent with freedom of expression.
On the other hand, someone may want to participate in a discussion anchored by a hashtag but not want to communicate with a particular person. Of many possible reasons for this, one may be that the person to be excluded does not want to hear from the other or has even told the other to stop contacting them. To interpret using a hashtag that you know another person also has used, may use, is using for an event, or even created (by using it first) as communicating indirectly with that person would prevent legitimate use of the hashtag. No one could use the hashtag without checking that anyone who did not want to hear from them was not using or following it, or might use or follow it.
The judge then did suggest that the two women did
legitimately feel harassed by the tweets -- but that alone isn't enough. They also need to show that Greg Elliott knew that the women were "being harassed," that his tweets caused them to be fearful for their safety, and that the fear was reasonable. And that's where the case falls down. Again, no one denies that he said some mean or crass things, but none of the things he said apparently tipped the scales far enough to suggest that he "knew" that what he was tweeting was harassing them or making them fear for their safety.
Given Ms. Guthrie’s view, Mr. Elliott would have had to know it in order to know that she was harassed. Knowledge, as discussed above, is really knowing. But that he knew that he was harassing her is not the only reasonable inference, based on the evidence that at the time, he was observing her constant involvement with him: participating in the mocking of him, unblocking to communicate with him, telling others he was a men’s rights activist harassing women online, saying his name and celebrating the “Ugh” at the mention of his name at the meeting.
This very context and history, which the prosecution relies on to show that Ms. Guthrie was harassed, raises doubt as to whether Mr. Elliott knew she was harassed. This is quite apart from the campaigns against Mr. Elliott that were hatched at the summer meeting, and the Twitter discussions among Ms. Guthrie and her followers about his alleged harassment of women.
The court also noted that many of the tweets that were called harassing were Elliott (perhaps over-aggressively) trying to defend himself from claims made by others:
All of Mr. Elliott’s tweets at issue were responses to the attacks on him that I have listed, or a return to the original dinner and the Bendilin Spurr dispute. I say “all” his tweets because Crown counsel does not rely on the content of any one tweet to suggest harassment. His not letting go of a topic is stubborn and may be considered childish, but it does not provide a basis for a recipient of his tweets to fear danger, especially if the recipient is herself still making negative comments about the sender.
Another premise of Ms. Guthrie’s is that Mr. Elliott was not allowed to tweet using hashtags that she created, was closely associated with or followed. But he was. She held a view of hashtags and Twitter that is she is entitled to but, according to this evidence, is not reasonable.
The court notes that the result might have been different "had there been anything in the tweets of a violent or sexual nature" but that after reviewing all the tweets the judge "found no such tweet."
The court looked separately at the case of Heather Reilly, and again found that she was "harassed" based on the tweets sent her way, but that the circumstances were not reasonable -- in that Reilly basically demanded that Elliott not refer to or look at her public communications:
On this evidentiary record, asking a person to stop reading one’s feed from a freely chosen open account is not reasonable. Nor is it reasonable to ask someone to stop alluding to one’s tweets. To subscribe to Twitter and keep your account open is to waive your right to privacy in your tweets. Arranging a meeting or social event using tweets other than direct messages is like inviting strangers into your home or onto your phone line while you talk to your friends. Blocking only goes so far, as long as you choose to remain open.
On the whole, it's a good result. Again, as we explained originally, the whole case seemed like a mess involving a lot of people doing really crappy things online, and then getting angry at others. However, nearly all of it involved protected expression and protected counter speech. It may have been ugly (on basically all sides by basically everyone involved), but none of that makes it illegal.