Wednesday, 29 June 2016

The crime of harassment on the Internet 

I can remember the days when some people would phone other people for the sole purpose of harassing or threatening them. That nonsense finally came to an end via the phones when the creep’s phone numbers would show up on the screens of their victim’s telephones—unless of course, the creep’s phone numbers were unlisted.

 Nowadays, many of these people use other means to harass their victims. However it can be most fortunate for these people if their messages are traced to them. That is what happened to Gregory Elliott, a resident of the City of Toronto who was accused of harassing two women on Twitter.

This very long article will explain in great detail as to what you can do and what you cannot do when you communicate with other people in Twitter, Facebook, Blogs and other forms of communication between persons using the airways.  What follows is a very interesting case dealing with problems that can occur when communicating with people in the above-mentioned forms of communications.

Stephanie Guthrie and Gegory Elliott met for dinner at a restaurant on April 18, 2012. The dinner was affable. From the conversation at dinner, having only Ms. Guthrie’s recollection, one possibility is that Mr. Elliott was interested in a friendship or more. He persisted in asking to drive her home after she declined.

There was some after-the-fact explanation of this dinner by Ms. Guthrie, given what occurred later. She said she did not get a “great vibe” from Mr. Elliott, and his eyes made her feel “creeped out.” She felt uncomfortable as he repeatedly leaned across the table. She not only refused to accept a ride from him and further, she also would not accompany him to his car to look at a sample poster of his. So he went and got it instead.

In any event, the dinner was unremarkable. It was about what it was supposed to be about, and happened well before the tweets began that she received that gave rise to the charges. I dwell on it to provide context for the subsequent email and Twitter exchanges. Asked about another possible meeting, Ms. Guthrie could not recall it but did not say it didn’t occur.

Ms. Guthrie testified that she thought of Mr. Elliott as a “creep” at their dinner in April 2012, that there was a seething anger to his emails about his artwork and that she knew from research that he had sexually sexually harassed women, which was part of the reason she stopped him from doing the artwork for her organization that they had previously agreed upon.  However, there was no apparent seething anger in Mr. Elliott’s emails and Ms. Guthrie could not point to any in cross-examination.

Ms. Guthrie testified that she was not being entirely honest in her courteous emails and tweets to Mr. Elliott. She testified that she feared him from the time she had dinner with him. She said that being “creeped out” is a kind of fear.  I am not convinced that because a person is creeped out when a person meets someone else for the first time who appears creepy, is necessarily sufficient reason to later fear that person.

In any case, Mr. Eliott was arrested and charged with the allegation that he had sometime between and including the 1st day of August in the year 2012 and the 20th day of November in the same year in the City of Toronto, harassed Stephanie Guthrie by repeatedly communicating directly and indirectly with her thereby causing her to reasonably, in all the circumstances, fear for her safety This man was also accused of doing the same thing to Heather Reilly, thereby causing her to fear for her safety during that same time frame.

He was at that that time, under a court order, with respect to section 810 of the Criminal Code of Canada that stated that he was to comply with a condition that he stay away from a certain women and keep the peace.

Section 264 of the Canadian Criminal Code reads:

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;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

(3) Every person who contravenes this section is guilty of

(a) an indictable (Felony) offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction  (Misdemeanor which amounts to a maximum imprisonment of 18 months)

I should point out however that this doesn’t apply to private investigators who have the right to watch persons at their outside work or their residence or anywhere else whom they are investigating. I know this for fact because when I was a private investigator back in the 1970s, the police were called on occasion by nosy neighbours but as soon as I lowered my car window and showed the police my PI licence; they nodded at me and drove away.

The offence, as the Canadian Parliament has defined it under section 264, is complex. The application of subsection (2)(b) is even more complex in relation to Twitter, in which communication with individuals directly and indirectly overlaps with communication with everyone using the service, and communication with everyone else using the service becomes indirect communication with individuals.  I will give you an easier explanation. 

1)   It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (d) of the Criminal Code;

2)   It must be established that the complainant was harassed;

3)   It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

4)   It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

5)   It must be established that the complainant’s fear was, in all of the circumstances, reasonable.

The term “harassment” means causing someone to be tormented, troubled, worried continually or chronically plagued, bedevilled and badgered.

This criminal act does not apply in a case where the victim is simply upset or annoyed.

The victims had expressed their fear for their safety in this particular case which of course is a very important factor that would have a strong bearing on the charge laid against Eliott. 

There is a requirement of this offence that the complainant have a fear for her safety that is reasonable in all of the circumstances. The fear must be proven as a fact, though this is subjective to the complainant.

Although section 264 prohibits certain conduct “knowing that another person is harassed or recklessly as to whether the other person is harassed or not,” both counts against Mr. Eliott alleged only “that he knew that Ms. Guthrie and Ms. Reilly were harassed by his repeated Twitter messages.

The complainants testified that they sent certain tweets and that they saw and received certain tweets. However, both complainants tweet prolifically, and they could not remember all the tweets that they received or sent.

The proof of the tweets being sent and their content, which the prosecution argued, harassed the complainants and caused them to fear for their safety, which was the whole of the case on the act of repeated communication. Ms. Reilly and Ms. Guthrie testified to other elements of the offence and confirmed that they had sent some tweets, which were relevant circumstances, and received and read some of the tweets. But without the tweets that Mr. Elliott sent, there was no proof of him repeatedly communicating with the two women.

The prosecution sought to prove the existence of the repeated communication by introducing an electronic record of the tweets into evidence. These records were obtained as follows; Detective Bangild, who has training in digital technology and by using the internet as an investigative tool, received the complaints from the two women. He investigated using a computer program from the Sysomos company. To use this program requires a licence, which anyone can acquire and the Toronto Police Service had acquired one. A person’s public tweets are available to anyone on the public platform, as Twitter does not protect its users’ tweets, so no search warrant was required.

Along with a civilian proficient in computers, Det. Bangild had tried to access the tweets of the complainants and Mr. Elliott using the public platform. That is, they looked on Twitter’s website, where anyone can go to read tweets (without a Sysomos licence). However, this approach limits the number of tweets by period of time, and does not capture erased tweets. He decided that to investigate properly required looking at many more tweets than were visible on the public platform, so he resorted to the Sysomos software. P.C. Dayler explained that the Sysomos software does not save pictures or videos that were attached to the tweets, but only the text of the tweets.

Det. Bangild spoke to Ms. Guthrie and Ms. Reilly as well as another woman. He decided that for each complainant, he would look for the “conversation between” the complainant and Mr. Elliott. He conducted this search by looking for every tweet that each complainant sent that contained Mr. Elliott’s handle and every tweet that Mr. Elliott sent that contained either of the two complainant’s handles.   

He also searched for tweets that Mr. Elliott sent that contained certain hashtags. From the complainants’ evidence, the complainants reported to the police that Mr. Elliott was communicating with them by sending tweets using hashtags that, in the case of Ms. Guthrie, he knew that she had either created or read, and in the case of Ms. Reilly, that he knew that she had read.

Det. Bangild also searched for the hashtag #fascistfeminists, which one of the complainants advised him that Mr. Elliott had either created or used. The complainants either did not disclose the hashtag or Det. Bangild did not search the hashtag #GAEhole that someone else had created in relation to Mr. Elliott.

When Det. Bangild printed out the results of his search, he produced tables of tweets. The first column contained a URL link to where the tweet could be found on the Internet; there the tweets were shown with the sender’s handle. The second column stated the date the tweet was sent. The third column contained the content of the tweet. The prosecution introduced these search results into evidence. 

This format, in the case of the tweets searched by a sender (a complainant or the defendant) that contains the other’s handle, gives the impression of an exchange when the tweets follow closely in time. Indeed Det. Bangild titled the documents “Conversation Between Stephanie Guthrie and Gregory Elliott” and “Conversations Between Reilly and Elliott.”

Within the period set out in the information were three discrete periods, they being; August 1 to September 9th, September 9th to 12th, and starting November 5th just prior to his arrest. Between these dates there was relative calm, as there were no tweets between Mr. Elliott and Ms. Guthrie that the Sysomos search captured.

On August 3rd, the Toronto Star published an article about Ms. Guthrie. Mr. Elliott tweeted about it and added, “#Hate is hate” with a smiley face.

The article was about Ms. Guthrie’s campaign against a Bendilin Spurr. In a tweet, Mr. Elliott accused Ms. Guthrie of “media-whoring”, as the full tweet in Exhibit 2A demonstrated. Indeed, Mr. Elliott’s August 3rd tweet employed one of the ways in which the Crown (prosecutor) alleged that the non-direct tweets amounted to communicating with and harassing Ms. Guthrie. Ms Guthrie testified, things became serious regarding Mr. Elliott, and she began to be fearful of him. However, between July 28 celebration of her and August 3, he hadn’t done anything except tweet about the article, and she was no longer afraid pf him when the month of July ended.

Then Ms. Guthrie renewed the Twitter discussions about Mr. Elliott. Consistent with her intention to teach him a lesson, according to her testimony, she began to inform more people about what she considered was his mistreatment of women.

Ms. Guthrie, though in her perception not sexually harassed herself, retweeted six tweets that included Mr. Elliott’s handle. Others, she had learned, had confronted him about his unwanted sexual tweets to them.

She testified that she wanted him to know that his behaviour was unacceptable, so she re-tweeted the tweets from other women. She knew that he would read them as they had read his handle.

During this period in time, Ms. Guthrie did not allege any sexual harassment or threats to her or any specific harassing language, but relied only on the volume of Mr. Elliott’s tweets to her, that mention her, or that use hashtags she followed or created.  I think this woman was a bit too sensitive to threats that didn’t exist at that time.

Some of his tweets explained his perspective, his response to tweets about him and advanced his views, however offensive or wrong they may be. He names @amirightfolks as attacking his followers and talked about his dinner with Ms. Guthrie and the poster, and @amirightfolks’s tweets about it. His language was vulgar and sometimes obscene, and once inexplicably homophobic, though this tweet was not captured in the Sysomos search. Several tweets said he was the target of a calling out, was harassed himself and that his behaviour was misrepresented.

Freedom of expression as a long-enshrined part of Canadian life and law preceded it being enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms. Justices Sharpe and Roach succinctly summarize the scope of freedom of expression in their book The Charter of Rights and Freedoms.

Artists and writers often push the limits of conventional values. Scholars question “sacred cows” and accepted wisdom. Freedom of expression represents society’s commitment to tolerate the annoyance of being confronted by unacceptable views. As stated by the Ontario Court of Appeal in an early  Charter case, said I part;  “The constitutional guarantee extends not only to that which is pleasing but also to that which to many may be aesthetically distasteful or morally offensive. It is indeed often true that one man’s vulgarity is another man’s lyric”. More recently, the Supreme Court of Canada emphasized that “freedom of expression must include the right to express outrageous and ridiculous opinions and that public controversy can be a rough trade and for this reason, the law needs to accommodate its requirements.”

Whether the behaviour of Elliott was misrepresented or not, it is debatable that he was arguing with others and they with him. But there was basis for his belief that he was the target of a calling out and a campaign to discredit his reputation.

Unknown to him in early August, Ms. Guthrie had met with 15 others, including Ms. Reilly and those with the handles @rachelmack and @popeshakey, to find a way to make Mr. Elliott’s behaviour stop.

In my opinion, these people were sticking their noses into a man’s life in which they had no right to do so. It is not their collective right to correct another person’s conduct—especially when they aren’t members of his immediate family.  He might very well be a goof and a disreputable man but that is none of their business.

Twitter is a powerful medium and gives an individual the potential to communicate with many people as if that individual had access to the mass media. As such, the individual has certain responsibilities, and must act within the law, as Mr. Elliott is charged with failing to do. However, the individual also enjoys a constitutional right to freedom of expression.

The litigation in this case does not directly concern the proper use of Twitter or its potential to benefit or harm society. But in order to determine the narrow issue of whether Mr. Elliott committed an offence in relation to Ms. Guthrie and Ms. Reilly, the judge hearing the case had to determine how a hashtag should be viewed.

The prosecution and complainants relied on all Mr. Elliott’s tweets, including those that used hashtags that Ms. Guthrie and Ms. Reilly used. Mr. Elliott’s use of #AOTID prompted Ms. Guthrie to go to the police. In addition to the qualified evidentiary basis that the judge dealt with, the judge had the principle of freedom of expression and its limits on which to could draw support in making his decision. 

Twitter not only expands access to readers to those who do not have access to the mass media, it is an alternative to the mass media. It has the potential to develop so that more and different points of view can be promoted, including those that are not reflected in traditional media. Since tweets can include links, Twitter can spread well-considered articles as well as the tweeter’s opinion even if it is considered inappropriate. Any limitation on its use that is not necessary to prevent criminality will limit this potential. It will not be consistent with the freedom of expression that is essential to a free and democratic society.

The essence of Twitter and hashtags, is to facilitate communication between people with like interests who voluntarily choose to follow certain topics or people and see what is being said about and by them. 

Even with respect to tweeting in general, using Twitter while being protected from seeing another person’s tweets or having them see and comment on yours is unworkable. You can limit seeing another person’s tweets by blocking them, by not opening another person’s feed and by asking your friends not to retweet tweets from people you have blocked. And you can avoid reading their replies by not writing to them. But if you tweet with hashtags and follow hashtags, you are going to see every tweet that contains those hashtags, and anyone who wants can follow them. A blocker can choose to avoid seeing tweets with hashtags they follow from someone they have blocked, but they lose the benefit of the hashtag discussion by that choice.

 Creating a hashtag for an event on Twitter is similar to announcing a public meeting. Being public, it is not subject to restriction by the organizers as a private meeting would be since the only restriction is that those attending obey the law. But one’s very attendance at a public meeting cannot be deemed a violation of the law that is then used to bar entry. Similarly, the only restriction on tweeting a hashtag created for a specific event is that the Twitter account holder not break the law.

The potential diffusion of ideas that a hashtag holds could also be analogized to a billboard or an orator with a loudspeaker at a street corner. They can spread their ideas broadly and someone specific may hear them if they pass by. If the renter of the billboard or the orator knew that a specific person would have to pass by to go to work, and erected the billboard or delivered the speech for that reason, the general communication could be intended communication with a specific person.

Every time that Mr. Elliott started a tweet with Ms. Guthrie’s handle or mentioned Ms. Guthrie, he communicated with her directly. When he tweeted mentioning her handle, he knew that it might be brought to her attention. Even after she blocked him, his perception that she was part of a group proves he knew tweets with her handle would reach her.           

The judge in his decision said; “I accept that Ms. Guthrie was sincerely harassed within the meaning of the Criminal Code  She was certainly vexed, disquieted and annoyed, but that this is not enough. She was not tormented or chronically plagued. She did feel troubled, bedevilled or badgered. But harassment has an identifiable meaning without resort to the dictionary, and that is how Ms. Guthrie felt.”

He then added; “The fact of her harassment came from different beliefs and positions that she held and the large volume of tweets that Mr. Elliott sent to her or about her. It came from her view that Mr. Elliott could not use Twitter in the way that he did. It came from her understanding that every tweet from Mr. Elliott that mentioned her was meant for her – even if it was a retweet of someone else’s tweet that had mentioned her. It came from her perception that she could tweet on topics without being exposed to what she viewed as his spurious, invalid tweets about the same topic – even if the topic was him, his online behaviour alleged or factual, his opinion on subjects she discussed, or insults to him.” unquote        

Knowledge is a state of mind. An accused’s state of mind can be proven by direct evidence, if for example he states it and is believed. This is not the case here. There was no statement or confession by Mr. Elliott that he knew that Ms. Guthrie was harassed. To the contrary, his only direct statement about harassment that was admissible was his denial.

The judge in his decisions said the following;

“There is no doubt that Ms. Guthrie was harassed and that Mr. Elliott must know that now, after her complaint and her testimony. But even now, what has harassed her is only the volume of tweets. There is no allegation of sexual harassment or threats, as Ms. Guthrie and Crown counsel acknowledge. Certainly anyone sending one tweet of that nature would know that the receiver would be harassed, Crown counsel would have drawn my attention to it, and likely Ms. Guthrie would have mentioned it. But Ms. Guthrie took pains to emphasize the volume. I have reviewed all tweets in the Sysomos printout, including the hashtag-based tweets, searching for such a tweet. Mr. Elliott called Ms. Guthrie a “nut-job” and once a “bitch” when he said he would have wished her well about her music that night except that she had been such a “bitch lately”. No tweets in themselves provide the basis for inferring knowledge.” unquote

I do not accept that blocking someone or telling them that you blocked them a month ago communicates that you are harassed. Ms. Guthrie was not harassed on July 7, yet she blocked him. There can be many reasons for not wanting to read someone’s tweets. In this case, as I will discuss, it was in part because Ms. Guthrie thought what Mr. Elliott had to say was worthless nonsense. This may be understandable, but is not equivalent to advising someone that you are harassed. The volume of tweets, to Ms. Guthrie, demonstrated Mr. Elliott’s obsession with her and her work. She did not specify which among many tweets harassed her, saying it was no one particular tweet. She did testify that the #AOTID tweet early in November was the catalyst for going to the police.”  unquote

The judge then dealt with the issue as to whether or not Mr. Eliott knew that what he was doing was harassment against the complainant. He said;

“Until July 28, she was not afraid, nor was she harassed. After July 28, the two were operating on the entirely different premises (assertions). I have referred to. Ms. Guthrie’s (assertion) that Mr. Elliott had nothing worth saying about anything and that his opinions were spurious and not worth reading or responding to. This included his view, opposite to hers, that he did not harass women.

Ms. Guthrie asked in testimony, “What did it matter that he had a valid point? Who cares?” I interpret this evidence, with the help of her explanation, as meaning that even if he had a valid point it did not permit him to stalk and harass her. In that sense, she is correct: you are not permitted to repeatedly communicate a valid point to someone when you know that they are harassed if it would cause them to reasonably fear for their safety in all of the circumstances.

“But in another sense, important to the determination of this charge, Ms. Guthrie is not correct. If he had a valid point, he was entitled to use the hashtags that she had created and mention her, as he would not know that she was harassed by his expressing views in opposition to hers or her friends’. This is particularly the case regarding any issue about which Ms. Guthrie had herself engaged. It goes further. He did not have to have a valid opinion in her view or even an opinion that was not spurious in her view. He could, in the tradition of Canadian freedom of expression have a controversial or even offensive opinion. He could use extreme, hyperbolic, provocative language such as “fascist feminists.” He could be, and unfortunately was, homophobic and insulting.

“Mr. Elliott’s view, as emerges from the content of his proven tweets, is that he could write what he wanted. His view conforms to the Twitter rules and the Canadian value of freedom of expression. If that was his state of mind, then he would not know that Ms. Guthrie was harassed by his doing what was lawful and what the platform they were both using permitted. What was lawful remained lawful; it does not amount to a crime unless the person communicating knows that the other person is harassed.

“From Mr. Elliott’s side, the whole exchange in relation to Ms. Guthrie was about what people talk about, (such as) whether he would do the poster, whether he could drive her around when she was injured or bring her alcohol, whether it was a good idea to campaign against Bendilin Spurr and notify Mr. Spurr’s employer, whether he “creeped her out” at dinner, whether he was a misogynist, whether the charges of harassing women online were fair, whether he was trying to proposition an underage girl or an adult woman, and even at the end whether he was harassing her and her friends or he was being harassed under the guise of being accused of harassment. He was accused of being sexist, misogynist and tweeting inappropriately, but he denied all the accusations.

“The language of Mr. Elliott’s tweet is neutral and benign. The content is far-reaching, invoking complex concepts of nothing less than right and wrong, blame, the reasons men rape women, mental illness, what is normal and the criminal responsibility of the mentally ill. Some would say it is presumptuous to attempt this in no more than 140 characters; epigrams and maxims have their place in great writing but also their limit. Not all of us are writers such as La Rochefoucauld or Oscar Wilde. Others would and are allowed to say that tweeting about such topics advances understanding.

“In summary, there is no direct evidence of Mr. Elliott’s knowledge of Ms. Guthrie’s harassment. Blocking does not convey harassment; it does not work and can be done for many reasons. No one conveyed to Mr. Elliott that he was harassing Ms. Guthrie; she was leading or at the least playing a major role in calling him out for allegedly harassing women online.

“His tweets, though obscene and homophobic in at least two instances, never threatening or were sexual. He exercised his right to tweet and to use public hashtags. And the volume of tweets that harassed Ms. Guthrie included permissible comment by Mr. Elliott and tweets using hashtags that Ms. Guthrie helped create and followed.

“As there is no proof beyond a reasonable doubt that Mr. Elliott knew that Ms. Guthrie was harassed, I turn to recklessness. This is an entirely different mental state than know­ledge. It requires only awareness of the risk and then persistent conduct despite the risk. It is less onerous for the prosecution to establish. But it still requires Mr. Elliott to be aware that something he is responsible for is harassing a person, as in my analysis of actual knowledge. That which is prohibited is Mr. Elliott repeatedly communicating, reckless as to whether or not his conduct is causing Ms. Guthrie to be harassed.

“Awareness of the risk is still a state of mind to be inferred from the evidence. The accusations that Mr. Elliott harassed women online were, quite simply, nearly unanimous from those he was fending off and attacking, whom he grouped as #Fascist Feminists. He did not have to accept their accusations and most certainly did not. Ms. Guthrie never said that he was harassing her in so many words, as I found in discussing knowledge. And he vehemently denied that he had ever sexually harassed  her and defied her to provide an example. But as for harassment from his communication with her using her handle, he was aware that she did not want to hear from him. He exercised his right to keep referring to her. But he had to be aware that there was a risk that he was harassing her.

“Also, he persisted in sending indirect communications. I do not include his use of hashtags, given my findings that they should not be treated as direct or indirect communication absent proof of intention to use them for that purpose. But he was confident in his knowledge of what amounts to harassment, as he made clear in his comment using #16days: "you better be damn sure it's harassment, and, it is directed towards you." I am not talking about criminal harassment in all of its elements but the word in its ordinary meaning, the part of the actus reus (criminal act) to which knowledge and recklessness must attach. There was an overwhelming risk that Ms. Guthrie was harassed by his tweets that mentioned her handle or referred to her. It does not matter for the purpose of assessing recklessness whether she was wrong about her right to stop others from sending tweets that might reach her or that a court might ultimately find that she was wrong and he was right. He was aware of the risk and he took it.

”Recklessness has been established and there is no need to consider willful blindness. I therefore turn to Ms. Guthrie’s fear for her safety.

“Ms. Guthrie testified that she felt harassed from when her dispute with Mr. Elliott turned serious in August. She said that the tweets between August and November in which he used a hashtag that she had created showed a lack of respect for her boundaries and that he was contacting her when she had explicitly requested that he not (do so). His knowledge of the neighbourhood in which she lived and of the increasingly sort of “nonsensical, paranoid, conspiracy theoryesque” nature of his tweets about her and her friends made her feel “very much that there was a potential for danger”. I have already found Ms. Guthrie to be credible. Fear for her safety is subjective to her. This element of the offence is proven beyond a reasonable doubt.

“The complainant’s fear for her safety must be reasonable in all of the circumstances. While Ms. Guthrie’s genuinely held fear for her safety is subjective to her. This element of the offence requires an objective assessment of her fear. It is trite law that ‘reasonableness’ imports an objective standard that is measured by the reasonable person test. This does not mean that the subjective grounds for Ms. Guthrie’s fear for her safety do not enter into the determination. It is just that they are subject to an assessment of reasonableness in all of the circumstances. Ms. Guthrie, during testimony, expressed her concern that the case had become focused on her behaviour rather than Mr. Elliott’s. But this final branch of the charge requires an assessment of the reasonableness of her fear.

“That Ms. Guthrie is a woman is relevant. Crown counsel submits that “a reasonable person, especially, a woman, would find Mr. Elliott’s tweets and behaviour concerning and scary.” Women are vulnerable to violence and harassment by men, and Ms. Guthrie advocates for understanding and change. I must judge the reasonableness of Ms. Guthrie’s fear in all the circumstances and on the evidence.

“What caused Ms. Guthrie’s fear was the volume of tweets, and her perception that he was obsessed and fixated on her and her work. The volume of tweets on which Crown counsel relies includes tweets before July 7. The context of these tweets is an important circumstance to consider in considering whether she reasonably feared Mr. Elliott because of the volume of his tweets, to her, about her and using hashtags she created or used. And as her objection to these tweets is intertwined in her mind with the fact that she blocked him, the reason that she blocked him is also one of all of the circumstances. It demands detailed review.

“Ms. Guthrie’s defence of American feminist Anita Sarkeesian was admirable. The face-punch game is very violent; pictures of it are in evidence. But her action on behalf of women and Ms. Sarkeesian was controversial in her own view. She knew full well the can of worms that she was about to open, as she put it, and said her heart was in her throat. She also used the word “sic” in her tweet asking whether to engage the internet public about the creator of the game. This metaphor has no meaning apart from a violent one, like freeing a dog to bite. She made her argument to the game’s creator, Mr. Spurr, with rhetorical force: “Do you punch women in the face IRL, or just on the internet?” In short, her approach was a matter open to fair debate. Mr. Elliott called it revenge. She told him that if he thought it was revenge he was not listening, and that she was through with him.

“Unknown to him, she had investigated Mr. Elliott by using the internet and learned of his alleged harassment of women. That was part of the reason for her not using his work earlier, which she did not disclose to him.

“His tweeting after being blocked because he used the word “revenge” is not behaviour that could lead someone to reasonably fear for their safety—particularly when Ms. Guthrie was tweeting to others that he was a men’s rights guy who disguises his feelings about women with a cloak of “care,” and that he was a “concern troll” of feminism.

“In any event, there was no fear or harassment until the end of July. I agree with Crown counsel that behaviour before the period charged in the information is relevant to harassment and fear. But I disagree that anything up to August 1 provided any objective reason for Ms. Guthrie to fear for her safety. The record shows a civil or mutually acceptable relationship until July 7 and then Mr. Elliott tweeting his point of view.

“Any circumstances that make her fear reasonable therefore must be found during the period charged. Ms. Guthrie testified that she became fearful of him when things became serious around August 12. That is the day that Ms. Guthrie tweeted the six retweets of others telling Mr. Elliott to stop harassing women, to stop being a misogynist, to stop “creeping out” women.

“He mentioned her in a tweet to someone else saying he had offered a truce. Next he sent the tweet about offering Ms. Guthrie a ride when she had a cast and saying that the “nut-job” thought he wanted sex. Then he tweeted someone with a request to ask her if she had one example of his “sexually harassing her”.

“Ms. Guthrie’s fear came from the volume of his tweets, including those using only hashtags. She could not say that she saw all of them, but I accept that she saw a lot. But whether she reasonably feared for her safety requires me to inquire into her reasoning. Mr. Elliott’s views were spurious and garbage and of no value; the contents of his tweets were irrelevant; if she didn’t want to hear from him and blocked him, then he should not (have used) her handle and risk her seeing what he had written.

“In these circumstances, these premises (assertions) were not reasonable. If she was fearful solely because of the volume of tweets to her, mentioning her or using a hashtag that she created or followed, then the reason that Mr. Elliott was tweeting and what he was saying is relevant to the reasonableness of the fear.

“The main premise that I find unreasonable is her perception that she could tweet about topics but not be exposed to his tweets (however spurious and invalid) about the same topic—even if the topic was him.

“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 (Mr. Eliott) 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 using her hashtags, She held a view of hashtags and Twitter that she is entitled to but, according to this evidence, is not reasonable. The effect of Constable Dayler’s evidence on this point is that a hashtag is open to the world.

“It is reasonable that fear can arise just from the fact of someone continuing to contact someone after being asked to stop. That behaviour could reasonably signify that the person who continued the contact was capable of anything since they ignored the request. Findings of reasonable fear are made on just that basis.

“But in this case, Ms. Guthrie’s unreasonable premise that Mr. Elliott was irrational and had nothing valid to say meant that she never put his tweets into any context. The very fact of his tweeting any hashtag she followed or any tweet about her or with her handle harassed her. She would not even allow for the possibility that he had any reason apart from the obsession with her that she perceived to tweet about her. Given that she had a leadership role in the campaign to denounce him, that is not reasonable.

“Though Crown counsel argued that as a basis of Ms. Guthrie’s fear, I did not interpret her fear of danger to mean that. She particularly cited his knowing the neighbourhood in which she lived, and there is no evidence that she feared for her psychological safety. That fear must also be reasonable.

“At this point I have already determined that Ms. Guthrie was harassed by the repeated communication. Had there been anything in the tweets of a violent or sexual nature or that indicated the irrationality that Ms. Guthrie perceived, that could support a fear of danger on the basis that he would be capable of anything. But as I have discussed in relation to knowledge, I have reviewed all of the tweets—despite Crown counsel and Ms. Guthrie not relying on any one tweet —and found no such tweet. The element that the fear be reasonable in all of the circumstances has not been established beyond a reasonable doubt.

The judge dismissed the charge against Mr. Reilly with respect to Ms. Guthrie’s complaint.

“For the prosecution to prove the charge, it is not sufficient that it be proven that Mr. Elliott repeatedly communicated directly or indirectly and that he knew she (Ms. Reilly) was harassed, as she was. The repeated communication must cause Ms. Reilly to fear for her safety. When Crown counsel asked her how she felt towards Mr. Elliott when she went to the police, she replied that she felt “somewhat frustrated” because her repeated requests to be left alone had been ignored and she faced continued harassment. She did not mention (to the police) any fear. There is no suggestion of fear in her communication. Fear can be of psychological harm, as Crown counsel submits, but that is not the fear that Ms. Reilly was expressing to Twitter or in her testimony.

“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.

The judge Also dismissed the charge against Mr. Eliott with respect to the complaint of Ms. Reilly.

The judge then made the following ruling with respect to Mr. Eliott not complying with the terms of his peace bond he signed said;

“There is evidence of Mr. Elliott not keeping the peace in the general sense of swearing and using sexual and sexist language inappropriately. But Crown counsel fairly stated at the outset (of the trial) that the alleged breach of his peace bond was the commission of the other two offences. Since he is not guilty of those (charges), the charge of failing to comply with his peace bond is also dismissed.

I am sorry this article is so long but believe me; the judge’s decision was far longer. It is an important article since it can be used as a guide on how to communicate in the forms of communications as outlined in this article. 

No comments: