R v Elliott: An Unhinged Use of Hashtags
In R v Elliott, 2016 ONCJ 35 [Elliott], Gregory Elliott was found not guilty of criminally harassing two women by repeatedly communicating with them via Twitter through various hashtags they had created. In my view, Mr. Elliott fulfills the definition of a “Twitter troll” and I find his opinions personally offensive. But is the fact that he engaged these women in repeated debate, even after being blocked, enough to find him criminally responsible of harassment? Justice Brent Knazan found that Mr. Elliott’s not letting go of a topic is stubborn and may be considered childish, but it does not provide a basis for the recipient of his tweets to fear danger (Elliott, 76). I would agree. To be clear, Mr. Elliott’s tweets did not threaten violence. But, I am also not implying that tweets need to have a violent nature to be found criminal. That view would ignore the realities of the way individuals perceive fear. However, a criminal charge is very serious and rightfully requires a degree of certainty. In the developing case law around social media, Judge Knazan got this right.
Much Abbreviated Summary of Facts
Ms. Guthrie, a women’s interests activist who depends on Twitter for business, met Mr. Elliott online in 2012. In April of that year, they met for dinner to discuss Mr. Elliott possibly designing a logo and poster for her organization (Elliott, 29). Ms. Guthrie did not choose Mr. Elliott for the design but their communications remained amicable. Things drastically changed when in July of 2012, Ms. Guthrie started an online campaign denouncing and shaming a young man who had made an appalling online face-punching game. The game involved users virtually punching an impersonation of feminist-blogger Anita Sarkeesan until their screens turned red. Mr. Elliott disagreed with Mr. Guthrie’s strategy and tweeted to that effect.
Ms. Guthrie blocked Mr. Elliott and told him she had had enough. In the following months the feud escalated with Mr. Elliott tweeting about Ms. Guthrie through hashtags. Ms. Guthrie also tweeted about a parody account targeting Mr. Elliott that she described as “her least favourite creep on Twitter” (43). Eventually Ms. Guthrie went to the police about Mr. Elliott’s incessant tweeting at her or about her.
Reasonable Fear on Twitter
Mr. Elliott was charged with s. 264 of the Criminal Code, RSC 1985, c C-46. The section outlines a complicated charge with several constituent elements. This charge required further contextualizing because the medium of communication was Twitter.
Section 264.(1) and (2) (b), are relevant for the purpose of this case and they read as follows:
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
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
In order for the charge to be made out, the Crown had to prove five elements: (1) repeated communication, (2) that the complainant was harassed, (3) that Mr. Elliott knew Ms. Guthrie was harassed, (4) that the communication caused her to be fearful for her safety, and (5) that the fear was reasonable in all the circumstances (Elliott, 8, 55).
Establishing that Mr. Elliott repeatedly communicated with Ms. Guthrie, and that it constituted harassment, was easy based on the record of tweets (61). But the harder question to answer is, did Mr. Elliott know that he was harassing Ms. Guthrie? This part of the charge requires knowledge of the victim’s state of mind. The Judge did not accept that blocking or telling someone that you blocked them a month ago communicates that you are harassed (63). Further, the Judge acknowledged that Mr. Elliott’s view was that he could write what he wanted, and not only was this view consistent with Twitter rules, but also with the Canadian value of freedom of expression (65). However, the Judge concluded that Mr. Elliott had acted recklessly in his behaviour after he was blocked by continuously engaging with the victims (71). Even though not aware of the state of mind of the victims, his recklessness was enough to fulfill this element of the charge.
Judge Knazan also found that Ms. Guthrie feared for her safety based on the way she had interpreted the interaction. But, the charge also requires that the fear be reasonable. Judge Knazan found it unreasonable that Ms. Guthrie had the perception that she could tweet about topics but not be exposed to Mr. Elliott’s tweets about those same topics, even if the topic was Mr. Elliott himself (76). Further, given that Ms. Guthrie had a leadership role in the campaign to denounce Mr. Elliott, it was unreasonable that she would not even allow for the possibility that he had any legitimate reason to tweet about her other than to harass her (77).
Judge Knazan also found that Ms. Guthrie’s view of hashtags was not reasonable (77). This is one of the most important parts of the judgment. The Crown had included in the definition of “repeated communication” the use of hashtags. The hashtag branch of this argument raised the general question of whether communication by Twitter using a hashtag could be considered communication for the purpose of the offence. Judge Knazan, rightfully in my view, pointed out that creating a hashtag for an event on Twitter is similar to announcing a public meeting (60). The nature of a public meeting means that it is not subject to restriction by the organizers, except that those attending follow the law (60). More importantly, the judge acknowledged that once someone creates a hashtag, anyone can use it, and restrictions on the use of hashtags would limit the operation of Twitter in a way that is not consistent with freedom of expression (58). As such, the fear based on this particular communication was not reasonable, and Mr. Elliott was found not guilty.
Evidence in the Digital Age
Many in the social media community and online media proclaimed that the judgment sent the message that it was an “open season on women.” I disagree. For as much as I find Mr. Elliott’s views and behaviour disturbing, it would be huge leap to make the inference that he was criminally responsible for harassment based on these facts alone. Perhaps it was unfortunate that the two victims engaged Mr. Elliott constantly therefore sending mixed messages. But that does not diminish the validity of the Twitter analysis and what is reasonable fear.
The case was also instructive in that it dealt with persistent problems in evidence collection and presentation of Twitter communications. Police relied on software that can capture erased tweets, as well as ones that are currently on the internet. However, this method is not perfect as the transcribing is not always accurate. It also requires an internet connection in the courtroom as tweets often contain attached articles that need further access. Further, it requires that parties involved have open accounts at the time of the retrieval. More importantly, tweets raise the issue of who actually sent them, which can leave victims vulnerable. All in all, this case speaks to the evolving social norms around what is appropriate behaviour on Twitter. Some of these solutions can be found outside of the criminal justice system.