Judging Twitter

“Treated” is not quite the right word, but for purposes of this article I’ll say avid Twitter users were treated in early February to innumerable passionate pleas tagged #RIPTwitter that Twitter not change its algorithm and containing warnings that if Twitter dare mess with reverse chronological tweet delivery, the company would have drawn on its last measure of goodwill.

Before continuing, let me first acknowledge that the preceding statement likely sounded like nonsense to most of you. Not many Canadians have Twitter accounts (~25%), and only a tiny fraction of subscribers engage with sufficient frequency to notice small changes in the service experience. Still fewer engage to such a degree that they feel ownership over the experience and vested with authority and superior understanding of how the platform is supposed to work that they wouldn’t hesitate to call out Twitter’s owners as fools who clearly don’t know what’s best for Twitter.

When you read R. v. Elliott, 2016 ONCJ 35, you are introduced to three such people. To be clear, the case wasn’t about the latest uproar, but there is no doubt in my mind that the main players in this case were of a type* with those clouding my Twitter timeline this week-end.

Public Twitter stats show the following about the accused and the two complainants in R. v. Elliott: that the least prolific among the three has posted over 34,000 tweets and the most has posted over 300,000; that one of three follows nearly 1000 other users and the other two follow over 2000 users; and that each has been on the platform for at least 5 years. Clearly they were power users well positioned to assist Justice Knazan in understanding what Twitter is, how it works and the norms and etiquettes users expect of each other. Of course, like any three Twitter users selected at random, the three had different opinions on how different aspects worked and what was considered reasonable (e.g., hashtags – and whether the originator of a hashtag has some right to exclude others). To my mind, this makes it all the more impressive that Justice Knazan was able to piece together and painstakingly explain in his ruling how Twitter worked and how the interactions among the parties were relevant to the legal tests applicable to the charge of criminal harassment.

Among the 285 cases published on CanLII that mention Twitter, you will not find a better or more comprehensive attempt at understanding and explaining the platform and its insider lingo. Relying on the evidence of the witnesses (the three above and a police constable qualified as an expert on Twitter), the judge defined around 30 terms including basics like “handle” “follow” “retweet” and “hashtag”, and more advanced ones like “subtweet” “storify” and “troll”. I don’t think the definitions or subsequent inferences made are perfect, but often in circumstances where I might disagree, I could see how the error lay with the explanation offered by the witness (for example, the “expert” constable incorrectly stated that tweets beginning with a handle are seen by users who follow either the sender or receiver, when in fact the tweet would only published to the timeline of users who follow both sender and receiver). Frankly, short of “hot-tubbing” a panel of true experts, the judge couldn’t have gone to greater lengths here to ensure that he understood the medium of communication and its context. Consequently, I was disappointed to see this case called out as an example of an out-of-touch judiciary.

An Ottawa Citizen headline about the case read: “Aloof judges struggle with cases involving modern life”. If a neighbour down the street offered a similar thought out of the blue in a random conversation, I’d be inclined to agree. But this was not the best example of the problem. It’s true the prevalence of social networks means more matters before the courts will turn on questions such as whether what’s reasonable or unreasonable in a “real life” interaction should be looked at differently when the interaction takes place online. But in this case, while significant efforts were made to understand the online context, it didn’t strike me that the judge struggled in doing so. And let’s not overstate Twitter’s role in “modern life” – it is simply not relevant to the 75% of Canadians who don’t use it and only marginally relevant to many of those who have accounts.

A Canadian judge was recently called out by an appellate court and by the public for venturing an opinion on hockey strategy and seemingly allowing that opinion to influence her ruling. If that’s offside, where’s the logic in wishing for judges who were more conversant in Twitter? More Canadians golf than are active on Twitter, but we don’t feel a need to ensure all judges understand the difference between a fade and a draw.

Ultimately, I believe judges should emulate Justice Knazan the next time they are faced with a case that centres around Twitter (or Facebook, snapchat, kik, WhatsApp, LinkedIn, tumblr, instagram, Tinder, etc…) and put it to the participants in the matter to explain how the platform works, why the evidence should be accepted and what relevance any of it has to the legal issue before the court.

epilogue

Don’t hold your breath waiting for the courts to become experts in the way any particular platform works and in whatever norms apply. New platforms popup all the time (Peach, anyone?) and as the #RIPTwitter campaign suggests, norms can get upended in any given week. In the meantime, we can still hope that judges take the opportunity to experience the pleasure these platforms can offer.

The Canadian Centre for Court Technology released a study in May of 2015 on the use of social media by judicial officers. The 14 (!!) recommendations could be summed up as suggesting that judicial officers need to get their heads around how and when social media can be used without crossing ethical lines. I attended the conference at which the paper was released and at least one of the judges present agreed with my suggestion that there is little difference between the ethical boundaries they operate within when speaking publicly or writing extra-judicially for academic journals, and those that would apply when tweeting or blogging.

Many a judge possesses a sharp wit and wicked sense of humour. I’d love to see them online. It’s probably too much to hope for that they engage in Twitter battles with BadLegalLLP, but even something like a JusticeWillet would be great.

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*Disclosure: there are times when I too am of that type. I’ve been active on the network for 6 years, use it several times a day and have managed corporate and personal accounts. I’ve written numerous blog posts and one academic paper about the use of Twitter to disseminate legal information, and I’ve relied extensively on Twitter to establish and build my professional network and reputation. Let’s just say I’ve been highly vested in understanding how it works for many years.