Twitter Hashtags Are Public Forums Under the Law

Brevity is the soul of wit, and also Twitter. In that brevity though, there is plenty of context which is left out, and ample room for interpretation.

The Ontario Superior Court of Justice released a decision in R. v. Elliott this week, where two female complainants alleged Criminal Harassment under Section 264 of the Criminal Code based on exchanges over Twitter.

Justice Knazan dedicated the early portion of his decision to explaining the mechanics and culture of Twitter, for “One cannot understand this case without knowing about Twitter.” It includes various definitions and lingo, including, “A concern troll is someone who pretends to be sympathetic about a topic or discussion while trolling.”

This term was important because the accused, in addition to Tweeting directly at the complainants after they blocked (a defined term) him, also used hashtags (also a defined term), which they claimed were intended towards them as part of the criminal harassment. These were the tweets which prompted them to approach the police.

The accused’s tweets were described by the judge as vulgar, obscene, and even homophobic. But they were not criminal.

Although the repeated use of the first complainant’s handle, even after being blocked, did meet the test for repeated communication, and that she was sincerely harassed. The Code normally requires the accused to know that he or she harassed the complainant.

The main basis for claiming harassment for the first complainant was the sheer volume of tweets. There were no allegations made of sexual harassment or threats. Justice Knazan found that blocking someone, or even telling them that you blocked them, does not constitute communication to the accused that you are being harassed as required by R. v. Kosikar R. v. Lamontagne and R. v. Sillipp.

However, the second complainant had actually met the accused in person. She told him to leave him alone and he responded with harassing language and was responsible for her being harassed,

He may not have agreed with her views about Twitter and her right to ask him to stop tweeting or reading her feed. But insulting her body and calling her a hateful bitch, even if the “bitch” is in quotation marks, amounts to harassing. It has nothing to do with comment or argument.

If knowledge is not proven, the elements of the offence can still be met by demonstrating recklessness, an awareness of the risk, and persistent conduct despite the known risk. This recklessness is not the same as all of the elements found elsewhere in the Code, but rather a special actus reus for this offence. Here, Justice Knazan found the accused had to be aware that there was a risk he was harassing one of the complainants, because she had indicated she did not want to hear from him and he persisted regardless.

Fear for safety is a subjective element of the offence. This element was also met because the first complainant perceived a lack of respect for boundaries and demonstrated knowledge of their neighbourhood. But the second complainant’s response did not create such a fear, largely due the settings on her account,

…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 lack of all of the elements for either of the complainants meant that that the offence here was not met.

The most interesting part of the decision is the analysis around hashtags. Justice Knazan heard evidence of all the reasons why a person may want to communicate on a hashtag discussion without focusing on a particular person. He concluded,

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.

He further described the hashtag as a public meeting. Since it is public, it’s difficult to claim that unduly restrictions be placed on participants, simply because some of the readers of that hashtag might come across it. He concluded that legal communications using hashtags should not be included in the definition of subsection 264(2)(b), unless there is proof that the hashtag’s use was for the intended person of harassing someone.

The public nature of Twitter formed a significant part of the accused’s defence. Justice Knazan spent some time explaining this,

Twitter is a public forum; …You can communicate privately on it, and people do, but it is difficult. If you simply tweet, anyone who follows you can read it and anyone who doesn’t follow you can read it on the internet so long as they have a twitter account and yours is not private. If you address the tweet to someone by putting their handle first in the tweet, not only they will see it but those who follow their feed can see it as a tweet that they receive. If you mention someone’s handle in the text, then they will be notified even if the tweet is to someone else.

Everything militates against using Twitter as private communication and in favour of using it as a public forum, which is how Twitter self-defines and what it is. Tweets go to anyone who wants to read you by any method. Referring to other’s handles spreads the tweet. Putting a period before the recipient’s handle permits either everyone or at least the recipient’s followers to read it (on this point the evidence is not clear). Mentioning anyone else by their handle sends it to them. If anyone who receives it retweets it, then it may spread in the same way among the retweeter’s followers and then their followers. Pyramid and chain-letter metaphors come to mind…

Although this case was not about the proper use of Twitter, or its potential benefit or harm to society, the public nature of the forum is what makes this case so important.

We may not want these types of vulgarities in our public. They are crude, distasteful, and usually say more about the person saying it than what they are saying.

Some vulgarities, those which fall outside of criminal harassment, still enjoy Charter protection. We may not like it, but fortunately it’s as simple as a click to at least try to block it.

As for the hastags, try the top ones instead of the live, and you’ll get some filtering. But expect some noise. It is Twitter, after all.

 

Comments

  1. Will all the facts presented, there could be no other outcome. I can understand the disappointment, but I am relieved adherence to the law as its interpreted now was done here.

  2. It is interesting that Mr Justice Knazan went through the nature of Twitter in detail, but it sounds a if the substance of the ruling was media-neutral. He had to analyse the content of the communications and decide if there was a reasonable fear of harm. In its absence, he had to acquit – whether the harassment had been done by longhand on parchment, by email or by Twitter.

    If the complaint had been defamation, the publication of the offending content would have been pretty clear – though an analysis of Twitter messages could be useful to show that a personal message is ‘published’ for that purpose.

  3. David Collier-Brown

    What’s pleasant to note in this discussion is that Twitter is trying to be as close to a public forum as it can. While I find the tweety-bird discussions utterly unappealing, I am rather impressed by the company.

    I wonder if a company that doesn’t consider itself a public forum would conform to the same media-neutral analysis and yield the same conclusions? An interesting question for readers advising companies who host discussion boards.

  4. John,
    The fact that we probably need a civil or human rights remedy here should be a given. But criminalization is probably not the appropriate solution.

    David,
    The analysis for private forums, in particularly in the context of the employment relationship, certainly does yield a different analysis. We do have some cases on employee discipline for conduct in these types of forums.
    It gets even further complicated when we look at this in the unionized context, where the union itself may be hosting the blog. The British Columbia Public School Employers’ Association case helps illustrate these tensions.

  5. Here’s a writeup on the English Protection from Harassment Act 1997 – which provides civil remedies including injunctions for harassment. It seems from the writeup as if judges have to do some pretty active balancing of rights of free speech and freedom from harassment, even by Canadian Charter standards.

    a court will only grant an injunction restraining a campaign of vilification if it is satisfied that the claimant is not attempting to use the law of harassment to circumvent the law on freedom of speech

    courts must scrutinise very carefully claims that the defendant’s conduct is sufficiently oppressive, persistent, or unpleasant to cross the line from acceptable conduct into harassment and must ensure that any relief sought, while restraining objectionable conduct, goes no further than is absolutely necessary in interfering with article 10 rights. [= Article 10 of European Charter of Rights, protecting free speech.]

    Are we willing to see our judges get that involved?

    One of the main criticism by the plaintiffs’ Bar of Ontario’s recent Protection of Public Participation Act was the alleged difficulty for courts of balancing the harm done to the plaintiff by what the defendants said, against the harm that granting the plaintiff a remedy would cause to the value of free expression on the matter of public interest in issue. That seems a lesser task than what the English law requires (though I think our courts are up to what our statute demands.)

    Are we really just talking about a codification of the existing tort of intentional infliction of mental distress – but codification in the Charter era?

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