Man cleared in Twitter harassment trial
• It was touted as a test of what is considered harassment on social media, but a verdict Friday that cleared a Toronto man of criminal harassment rested on more traditional grounds.
In a judgment that detailed everything form the nature of Twitter to breadth of freedom of expression, Gregory Alan Elliott was cleared of two counts of criminal harassment that arose from online interactions with two women’s rights activists.
Stephanie Guthrie and Heather Reilly accused Elliott of harassment after months of back-and-forth on the social network in 2012. The charges sparked a debate about the case’s implications for social media and the limits of free expression.
Although new media played an important role in the ruling, Ontario court Judge Brent Knazan’s finding of not guilty (Elliott opted against a trial by jury) the medium was secondary to the result.
“It’s very important there was no express or direct threat,” said Boris Bytensky, a criminal lawyer with Adler Bytensky Prutschi, adding that would be the substance of the decision had the comments been made online or off. “At it’s heart, this is a criminal harassment case and the fact that it’s on Twitter is kind of beside the point.”
The allegations began amid discussions of feminist issues that became increasingly nasty. After Guthrie posted the identity of an Ontario man who made a violent video game depicting a prominent American feminist, Elliott responded in vehement opposition. That was in July 2012 and by the next month their interactions became so heated Guthrie blocked Elliott — a move that prevents a Twitter user from viewing one’s posts when logged into the website. Reilly’s interactions with Elliott were never as cordial as Guthrie’s — the latter at one point had dinner with the accused before things went sour — and from almost the beginning both were hurling 140-character insults.
The women continued to mention Elliott online, often mocking him and engaging in campaigns to portray him as a misogynist. But he also continued to mention them or tweet at them, going so far as to note he knew a Toronto bar where Reilly was one evening.
Knazan said he believed both women felt genuinely harassed and scared, but his judgment also found there were no objective reasonable grounds for them to be fearful.
Said Bytensky: “I think it’s also important on these facts that the two women were fighting back on social media, so it’s not just a one- way street of insults, it’s insults going both ways. The fact they were engaged means their fear is hard to justify as being objectively reasonable.”
Bytensky said he compared it with an ex-boyfriend leaving vulgar but not explicitly threatening voice mails. If he did so with enough frequency it might qualify as criminal harassment, but if the exgirlfriend also called and left him vulgar messages the two might cancel each other out.
Despite the hype that this was a precedent-setting case, Bytensky said the ruling is non- binding unless it is appealed and upheld. That means other Ontario judges are as free to cite the verdict as they are to disagree with it. But there are implications. “I think this decision even though it’s not binding will likely inform the police, at least the Toronto police, in the future” when weighing harassment charges based on social media, Bytensky said.
Knazan’s ruling repeatedly called Elliott “vulgar” and “crass” and “mean” but found that’s not the same thing as criminality. The verdict cited from the book The Charter of Rights and Freedoms by Robert Sharpe and Kent Roach that “freedom of expression represents society’s commitment to tolerate the annoyance of being confronted by unacceptable views … One man’s vulgarity is another man’s lyric.”
“Obviously protecting free speech means people will hear things they don’t want to hear and hear from people they don’t want to hear,” said Richard Moon, a professor of law at the University of Windsor. He said there are reasonable limits on speech, and making threats and harassment are just two examples.
Elliott’s lawyer, Christopher Murphy, said the verdict says “you’re allowed to express your view as long as your view doesn’t cross any criminal thresholds” by making explicit threats. A harassment case last year in Montreal also played out on Twitter, but in that situation the accused made explicit violent statements toward individuals and ended up pleading guilty and being ordered to psychiatric care.