Canadian Court Finds Man Was a Twitter Harasser, Just Not a Criminal One

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Canada’s first criminal case involving Twitter harassment, which could set legal precedents around online behavior, ended Friday with a not-guilty verdict for the alleged harasser. Gregory Alan Elliott sent “vulgar and sometimes obscene” tweets to two women in 2012, but a judge dismissed the case after finding that the victims never “reasonably feared for their safety” based on Elliott’s tweets, the CBC reported.

The case began in 2012, when one of Elliott’s accusers, Steph Guthrie, met him through Twitter and considered hiring him to do some graphic-design work. After feeling “creeped out” by their dinner together and looking at his Twitter presence, which is largely concerned with conservative Canadian politics, men’s-rights activism, and sex, she decided not to work with him — at that point, she says, he began to harass her online.

The two got into a heated online argument over a video game that let players punch feminist games-critic Anita Sarkeesian in the face — Guthrie wanted her Twitter followers to go after the creator of the game, while Elliott defended him. Eventually, she blocked him, but she said he kept indirectly communicating with her by using feminist hashtags she’d created and that he knew she would check.

Various sites reported that Elliott called Guthrie and the other harassment victim, Heather Reilly, “fascist feminists,” but the CBC notes police didn’t preserve the vulgar, obscene tweets he’s accused of sending. The lack of evidence played a role in Elliott’s case being dismissed, after his lawyers argued that the judge couldn’t fairly evaluate the case without seeing the tweets in question, and that it would be impossible to prove Elliott was the one who actually sent them.

Still, this ruling sets a high bar for what’s considered criminal online harassment. It’s not enough that Guthrie repeatedly indicated she wanted Elliott to stop contacting her, and eventually blocked him. Nor is it enough that Elliott once tweeted about a particular bar while Heather Reilly was there with her friends, which she said caused her to fear for her safety.

Although the judge, Justice Brent Knazan, acknowledged harassment had taken place, he said the harassment came through the sheer number of tweets Elliott sent to the women, not through specific threats. And without those threats, there’s no criminal offense.

There is no doubt that Ms. Guthrie was harassed and that Mr. Elliott must know that now, after her complaint and her testimony,” he wrote. “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.”

And even if the women did fear for their safety, Knazan wrote, he didn’t find it reasonable for them to do so, even in the one instance when Elliott indicated he knew Reilly’s location:

Even if I had found that the two minutes of concern at the Cadillac Lounge amounted to fear for her safety,” he wrote, “I would not find it to be reasonable in all of the circumstances.”

As the first and only criminal case of Twitter harassment in Canada, this says a lot about what it takes for online harassment to rise to the level of crime there: not just harassment, but a judge’s opinion that the harassment is sufficiently threatening to the victim’s personal safety.

Ultimately, this was a case of two competing ideas about how Twitter ought to be used, and the court came down on the side of unrestricted public conversation, finding that there’s a right for anyone to express their opinions, however “garbage” they may be, but no right to force someone to stop bothering you with their garbage opinions in a public forum.

This might be the most fascinating legal passage yet written on the nature of Twitter:

The proper use of Twitter is complicated, as it is developing. One view is Mr. Elliott’s as expressed in tweets such as, “You don’t know the value of twitter. If you want a private conversation use email,” and tweets expressing the importance of allowing others to tweet even if you think their opinions have no validity and are garbage. Ms. Guthrie’s view is the opposite. Though she testified that Mr. Elliott had a right to give his opinion, she took the position that she could demand that she be excluded from receiving it, which is her right – but also that he had to comply and cooperate, which is not her right.”

And whether you agree with the ruling or not, it’s breaking new legal ground by even attempting to scratch the surface of the widespread harassment problem Twitter users have been dealing with for years. Twitter’s public nature is both its entire appeal and its biggest weakness, and that’s not a problem that’s up to the legal system to solve. Change will have to come either through the software itself or through a cultural shift — and given how resistant Twitter, Inc., has been to the former, and how resistant Twitter users have been to the latter, it’s hard to hold out much hope.