Man not guilty in Twitter harassment case
Evidence did not meet threshold for criminal conviction: judge
In a heavily scrutinized and historic ruling, lauded by some and lamented by others, a Toronto court has delved into the frenzied realm of Twitter to grapple with questions of online expression and comments gone too far.
The result left some with the hope that there is now at least a framework to deal with alleged harassment by tweeting. Friday’s verdict in the trial of Gregory Alan Elliott — not guilty on all counts — was widely discussed by legal experts and the divided supporters of the accused and the complainants in the case. Many took to the Internet to spout rancour or gloat about the ruling, possibly inflaming the pitched debates of gender politics that were at the core of the harassment trial to begin with.
In the end, after a lengthy judgment was read out for more than four hours, Elliott stood on the front steps of the Old City courthouse, smiling for the cameras.
“I’m not guilty, and everything I did I thought was within the law, so I don’t know if I would change anything,” he said. “Freedom of speech is about expressing your opinions, your emotions, and if it’s taken out of context or misunderstood or misconstrued by others, you shouldn’t be punished.”
The complainants who brought charges against him, Stephanie Guthrie and Heather Reilly, did not speak to the media after the verdict.
Elliott was accused of harassing the women through Twitter from August 2012 until his arrest that November. The Crown alleged Elliott knowingly harassed them online, causing them to reasonably fear for their safety. He called each woman a “bitch” and made lewd comments about Reilly’s body, using lan-
Justice Brent Knazan said everyone must be able to use hashtags freely, and anything less is inconsistent with freedom of expression
guage against the women that the presiding Ontario court justice, Brent Knazan, called “mean, crass and insulting.”
In his 86-page decision, Knazan concluded that the evidence against Elliott did not meet the threshold for criminal harassment. The judge said he believed the women felt they were being harassed, but that it was not “objectively reasonable” for them to fear for their safety. He said Guthrie participated in an online campaign to accuse Elliott of sexual assault, and that he didn’t contact her after she told him to stop. In regards to Reilly, Knazan said her testimony wasn’t strong enough to prove she was fearful of Elliott — only “frustrated” and “concerned.”
Cara Zwibel, a director at the Canadian Civil Liberties Association, said the decision is an important one, reflecting that freedom of speech rights protect even the tweets that may annoy or offend us, and offering guidelines on how future cases involving Twitter can be approached.
Zwibel pointed to the judge’s remarks on the use of hashtags as a medium for free speech as a new guideline for future cases. “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,” Knazen wrote.
Drawing the line to determine what rises to the level of criminal behaviour “is a really difficult exercise” that depends on the unique facts of each case, Zwibel said.
“That is one of the reasons the decision is just shy of 90 pages.”
Where the line should go is of increasing importance as the country wrestles with how to approach new legislation to limit cyberbullying. Nova Scotia’s first attempt at such a law was resoundingly struck down for infringing on Charter rights, including freedom of speech.
The Nova Scotia law defined cyberbullying as any electronic communication that could reasonably be expected to intimidate or hurt the selfesteem of another person.
“Those laws have to be really narrow and really clear so people know when they are crossing that line,” Zwibel says.
The decision in Elliott’s case also highlights a problem that comes up in harassment cases — what the intent behind the communication was and whether the sender knew it could be considered harassing. “When people communicate on Twitter there a lot of context missing,” Zwibel says. “I think that make it harder for people to gauge how their tweeting is affecting other people.”
Privacy and Internet law expert David Fraser cautions against knee-jerk reactions and calls to fix laws or introduce new ones, pointing as well to his successful challenge to the Nova Scotia cyber-bullying law.
He and other legal experts suggest that alternatives to the criminal justice system can be found in the civil courts or human rights tribunals, and that these might be more appropriate for types of harassment that interfere with work, reputation or an ability to interact online.
“Are we using the criminal law in an area where it is not necessary?” says defence lawyer Tony Paisana, speaking generally about online harassment. “I think we need to think long and hard before we criminalize speech that falls short of intimidation or being threatening.”
One option suggested by Kendra Milne, legal director at West Coast LEAF, is something like a consumer protection system that could include things like standardized usage terms for social media sites, she says. “The state could play a role in regulating providers . . . so in cases where behaviours would not give rise to criminal charges, there is a recognition of the harm of the conduct and the threats and things like that.”
Another option suggested by Fraser is the ability to go before a judge and obtain a peace bond. The judge could balance concerns about freedom of expression and could impose a tailored order to stop communication with the affected person. If the order was violated, the criminal justice system could become involved, he said.
“The consequences of a criminal conviction are really significant and if we are going to do anything that criminalizes communication we are going to want to do that very, very carefully,” he said.
Fraser also warns against placing a legal obligation on Twitter or other providers, who often don’t know anything about the context of the reported abuse or the parties involved. However, he applauds the recent steps Twitter has taken to reduce online harassment.
“You would want to have it both be a free place where you have meaningful discussions, and you would also want it to be a welcoming place . . . which means making it a safe place, or safer place, for women and other groups of individuals who have been marginalized.”
In Elliott’s case, the judge found Elliott was harassing the women by repeatedly tweeting them and that he knew they were harassed. He found, however, that Elliott’s actions failed to reach the level of criminal harassment, because it was not reasonable, on the facts of the case, for Guthrie and Reilly to fear for their safety, physical or psychological.
UBC law professor Isabel Grant says questions must be raised about whether fear should be the only thing the courts recognize when it comes to establishing what constitutes criminal harassment.
“If the accused knows or is reckless about doing something that is harassing this person, why are we then requiring her fear to be ‘reasonable,’ ” she said, speaking generally and not about this particular case.
The idea of fear as the measuring point is also a problem because people react differently to being harassed — some become depressed, others withdraw, some become socially isolated, she said.
The argument might well be that we don’t want people who are afraid over the tiniest little remark to pursue charges of criminal harassment, but there are ways to do that in the legislation without putting a limit on the complainant’s fear, she said.