The Missing (and Missed) Context in R v Elliot

/

The decision in Internet harassment case R v. Elliot is a great example of the importance of context in shaping and understanding online interactions – and of what can happen when technology is conflated with context.

Background

The circumstances here are complex, originating in discussions on a hashtagged local political group.  Ms. Guthrie and Mr. Elliot had previously met in person to discuss the possibility of his designing a poster for an event, though ultimately he was not asked to perform the task.  The conflict between Elliot and Guthrie appears to have begun after a web-based game was released—the object of which was to punch an image of “Feminist Frequency” scholar Anita Sarkeesian until bruised and bloody. They differed on the controversial decision to expose the identity of the anonymous game designer, exposing him to the opprobrium of both his local community and online feminist community at large.  From there, relations between Elliott and many members of the feminist community became increasingly fractured and angry. 

To show criminal harassment in this case requires establishing:

  • ·        That Elliot engaged in conduct –  repeated communication via twitter
  • ·         That caused Ms. Guthrie and Ms. Reilly to feel harassed
  • ·         That he was aware of their harassment;
  • ·         The harassment caused them to fear for their safety; and
  • ·         That their fear was reasonable in the circumstances.

Breaking Down the Decision

In his long and carefully reasoned decision, Justice Knazan begins with an examination of the technological context in which it is rooted – the twitter platform.  The background on twitter does not include technical specs – rather, it is derived from those involved in the case.  A glossary of twitter terms is provided.  Next, the different means of communication on the platform are elucidated – a direct message, a public message, replying to a message, mentioning someone in a message, retweeting, etc.  – along with the (potential) audience for each. 

First, the difficulty of examining the communication in its entirety was discussed.  The communications took place over an extended period of time, and complainants did not have recollection of the exact text of each individual one.  The police detective, along with software and the twitter platform, was able to assemble a collection of tweets, but there were issues.   

The Court did contemplate the importance of context, with the Judge writing that

I cannot fully understand all the circumstances within the meaning of s. 264 with respect to the proven tweets without seeing the tweets that precede them on the printed-out page. When other tweets appear on the page of the printed tweets, which are in the end the exact product of the Sysomos search, they are then as much a part of the evidence as the original tweets. Their provenance and date are proven just as much as the main tweet that led to the result that Det. Bangild obtained. There is no difference between them and the searched-for tweets, even if no witness has confirmed that they were sent.

Using this expansive view, the court determines that conduct on twitter can constitute communication for the purposes of this case.

Ms. Guthrie

Turning to the charges, the court first examines Mr. Elliot’s interactions with Ms. Guthrie in order to determine whether the requirements of the charge are met.

  • Yes, there was repeated communication
  • Yes, the repeated communication made her feel harassed
  • No, Mr. Elliot did not know that she was harassed BUT he was reckless in that he was aware of a risk of harassment yet continued his behaviour despite that; and
  • Ms. Guthrie was fearful

It is on the issue of whether that fear was reasonable in all the circumstances where Ms. Guthrie’s claim fails.  Despite prefacing his analysis with the recognition that:

That Ms. Guthrie is a woman is relevant. Crown counsel submits that “a reasonable person, especially, a woman, would find Mr. Elliott’s tweets and behaviour concerning and scary.” Women are vulnerable to violence and harassment by men, and Ms. Guthrie advocates for understanding and change. I must judge the reasonableness of Ms. Guthrie’s fear in all the circumstances and on the evidence

nevertheless, the circumstances are misapplied.  Looking at the range of tweets and conversation trails, Ms. Guthrie’s active decision to “block” Mr. Elliott on twitter, her request to him to stop contacting her, and his continued participation in group conversation in which she was involved, the judge suggests that while under normal circumstances this would be sufficient to establish reasonableness, in this case it is not.  Instead, focussing on the technological context and reviewing the history between the Elliot and Guthrie, he (mis)interprets her anger and frustration about Elliot’s participation on certain hashtags and from this concludes that Ms. Guthrie’s belief that Elliot's activities indicated an obsession with her was unreasonable in the circumstances.   

With no tweets that explicitly show sexual or violence threats, no tweets that the judge interprets as demonstrating the irrationality perceived by Ms. Guthrie, the charge of criminal harassment of Ms. Guthrie fails, because the fear she experienced was not considered reasonable in all the circumstances.

Ms. Reilly

Mr. Elliott communicated directly with Ms. Reilly. He identified her explicitly when publicly complaining about her request that he stop following her feed, called her “fucking nuts”, and told her that “This is Twitter” and that her request that he stop replying to her posts offended his “sensibilities”. He replied to her retweets by asking how she would feel if he was so delusional as to ask her not to retweet him. He also communicated with Ms. Reilly indirectly during the period, by mentioning her in other tweets.

In this situation, the court found that:

  • Yes, there was repeated communication
  • Yes, the repeated communication made her feel harassed; and
  • Yes, Mr. Elliot did know that she was harassed

Here, it was the requirement that Ms. Reilly be fearful as a result of the harassment that derailed the case. 

A key feature in Ms. Reilly’s interactions with Mr. Elliott was fear for her physical safety – at one point he made reference to the public location where she and others were meeting.  This led her to fear that he was at that location, and she subsequently checked the room to ensure he was not.  This led to an ongoing concern about his ability to monitor meetings by the group and about physical safety in those instances.  Ms. Reilly had even filed a complaint with Twitter in September 2012, stating among other things that “…I am part of a ladies group that meets Mondays, and he is ‘tweet eavesdropping/stalking’ this group, which also leads many of us to be concerned for our safety in real life, as this has now begun to feel like a real life threat.”

The judge appears to have been put-off by her behaviour on twitter – Justice Knazan notes that “Ms. Reilly’s retweeting of forceful, insulting, unconfirmed and ultimately inaccurate attacks [against Elliot] suggesting pedophilia – combined with her tentative, hypothetical concerns that he could possibly move from online to offline harassment, and her knowledge that he never came to the Cadillac Lounge and never again referred to her whereabouts – raises doubt in my mind to whether she was afraid of Mr. Elliott.”

It was this doubt, ultimately, that compromised this charge – the judge was not satisfied beyond a reasonable doubt that the communications resulted in Ms. Reilly’s fearing for her safety. 

The Overlooked Context

Now let’s look at the larger issues of context. 

Early in the decision, Justice Knazan quotes from the McLaughlin/L’Heureux-Dube minority concurring judgement in R. v. R.D.S.:

41     It is axiomatic that all cases litigated before judges are, to a greater or lesser degree, complex. There is more to a case than who did what to whom, and the questions of fact and law to be determined in any given case do not arise in a vacuum. Rather, they are the consequence of numerous factors, influenced by the innumerable forces which impact on them in a particular context. Judges, acting as finders of fact, must inquire into those forces. In short, they must be aware of the context in which the alleged crime occurred.

42     Judicial inquiry into the factual, social and psychological context within which litigation arises is not unusual. Rather, a conscihttp://gawker.com/what-is-gamergate-and-why-an-explainer-for-non-geeks-1642909080ous, con­text­ual inquiry has become an accepted step towards judicial impartiality. In that regard, Professor Jennifer Nedelsky's "Embodied Diversity and the Challenges to Law" (1997), 42 McGill L.J. 91, at p. 107, offers the following comment:

What makes it possible for us to genuinely judge, to move beyond our private idiosyncracies and preferences, is our capacity to achieve an "enlarge­ment of mind". We do this by taking different perspectives into account. This is the path out of the blindness of our subjective private con­ditions. The more views we are able to take into account, the less likely we are to be locked into one perspective .... It is the capacity for "enlarge­ment of mind" that makes autonomous, impartial judgment possible.

 So what is this larger context?

Both Ms. Guthrie and Ms. Reilly were active in online and offline feminist communities.  Mr. Elliot too was politically active – remember that the original connection here was his volunteering to assist in designing something for an event in which the women were involved. 

These events are the context in which they live and work.  And they are the context within which the experiences and fears of Ms. Guthrie and Ms. Reilly must be understood. 

There is no indication in the decision that these issues were put forward by the Crown.  Perhaps they were.  Either way, they certainly do not seem to have been factored into “all the circumstances” within which these charges are being analyzed and assessed. 

The focus on the twitter platform and desire to properly parse and understand the technological context within which these charges arose is admirable.  But the technological is not and is never the only context within which interactions take place.  By ignoring the broader social and political context, this decision misses an important opportunity to address a growing problem—how to balance freedom of speech with women’s right to participate fully both onlione and offline without fear