R. v. Elliott, 2016 ONCJ 35 is is an interesting case from Canada about a failed harassment prosecution involving Twitter, which attracted considerable interest at the time.
The complainants were three women who made allegations against a graphic artist, claiming that his tweets about or to them constituted a crime. The evidence is clear that an orchestrated group of ill-motivated “woke” women conspired to gang up on this man, and harm him.
The case was heard, as appears to be the norm in Canada, by a judge sitting without a jury. It begins with a short “Twitter Guide for Dummies”, explaining how the medium works.
There was then a legal discussion about an amendment to the charge, which I’ll come back to later. But first I should explain the factual background to the case, which is fairly complex.
Mr Elliott met the lead complainant Ms Guthrie, a community activist, for dinner in April 2012. She wanted someone to design a free poster for a political campaign event. The campaign had a hashtag WiTOpoli which stood for “Women In Toronto Politics”.
There followed a series of polite e-mails and Twitter exchanges. They then had a disagreement over a very unpleasant video, which Guthrie decided to target. The video was by a young man with 11 followers, and it featured a prominent and controversial woman named Anita Sarkeesian, who was seeking to challenge alleged misogyny in the world of video games. The video invited viewers to punch an image of Sarkeesian.
Guthrie, who seems to have decided to act as a Twitter vigilante, decided to go after its maker. She sought to publicise the video, calling its maker “sick”, a “fuck”, and a “monster”.
She contacted his local newspaper and a local employer, warning the latter against employing this young man. This one-woman crusade garnered her a lot of attention and made her into a minor Twitter and local celebrity. She was even invited to attend a “Steph Guthrie Appreciation Event”!
Elliott objected to her tactics, which he described as “revenge”. In the ensuing Twitter debate, Elliott asked what if the young man were driven to commit suicide, as a result of Guthrie and others’ orchestrated attack on him, which (perhaps perversely) had gained the impugned video a wide range of attention from thousands of tweeters.
Guthrie then blocked Elliott, though he continued to talk about her, and she about him. As Judge Knazan later found:
in general, his tweets explain his perspective, respond to tweets about him and advance his views, however offensive or wrong they may be. He names @amirightfolks [Guthrie] as attacking his followers, and talks about his dinner with Ms. Guthrie and the poster, and @amirightfolks’s tweets about it……. there is a basis for his belief that he was the target of a calling out and a campaign to discredit his reputation.
Guthrie continued to tweet about Elliott, in an unflattering and even defamatory vein. One of her tweets referred to him as: “Toronto man Gregory A Elliott, sexually harassing women on the internet since lord only knows when.” He responded angrily, as one might expect. He started using a hashtag FascistFeminists and spoke of “bullies”. He referred to Guthrie as “a nut-job.” She rather piously demanded that he stop contacting her
A couple of months later, Elliott posted about half a dozen tweets criticising Guthrie and her tactics. By then Guthrie, in conjunction with a woman named Heather Reilly and another activist named Paisley Rae, had hatched a plan to get Elliott.
In early August 2012, Rae called a meeting at her home attended by about 20 women. Whilst the meeting was ostensibly to discuss the problem of online harassment more generally, the attendees decided to document Elliott’s tweets and to encourage other women whom he was tweeting to “come forward”. A conspiracy got underway.
Some in Guthrie’s group on Twitter were accusing him of being sexual with underage girls. To set him up, one tweeter with whom he had flirted then pretended to be aged 13, so as to enable to him to be slurred as a paedophile.
Elliott was understandably upset by such nasty tactics. He believed that there was a conspiracy against him, as indeed there was. One of his tweets said: ““I have learned that #TOpoli #FascistFeminists are using my avi, libelling me, and are attempting to get me kicked off Twitter. Bullies…”
One of the core issues in the case that was to come was whether Elliott’s use of hashtags, which the complainants also used, constituted harassment. He became involved in argument with another woman, who later became a complainant, Heather Reilly. Perhaps revealingly, Reilly’s Twitter handle was @LadySnarksAlot
Reilly accused Elliott of searching her timeline, by using a hashtag TOpoli which stood for Toronto Politics: “were you creeping the #TOpoli tag to find my tweet?” He responded in disbelief “‘Creeping’ the #TOpoli thread? What are you? Fucking nuts? You hashtag #Topoli you leave your tweets open to comment. #Duh'”
She asked him to leave her alone. He continued to post tweets arguing that Twitter is an open forum, in which anyone can read other’s public timelines and reply to tweets.
Reilly then began to retweet other tweets critical of Elliott. She also sent him some critical tweets. One read: “Stop using this hashtag to spew your self-aggrandizing, misogynistic bullshit. #tbtb”.
Reilly then went with some friends to a restaurant named the Cadillac Lounge one evening in September 2012. Some of the friends tweeted that they were there.
Reilly then went to the police, complaining that Elliott was in the restaurant, and was stalking her and her friends. This turned out to be untrue, because Elliott was not at the restaurant.
Reilly nevertheless persisted in her police complaint, later testifying that she was under the impression that “he was stalking me though my tweets, and could potentially be at any location I was, and I felt that that could eventually lead to a threat against my personal safety. This appeared to escalate from name calling through to potential…this could be physical harm to me.””
On 15 November 2012, Guthrie hosted an online debate for a virtual thinktank named Academy of the Impossible, using the hash tag AOTID. Elliott sent eleven tweets, using that particular hashtag. The next day Guthrie went to the police, alleging harassment.
On 22 November 2012, Elliott was arrested and charged with harassment. He was released after three days in custody, despite the Crown’s opposition, and subjected to draconian bail conditions, banning him from using Twitter, a smartphone, or a computer with Internet access. He was thus unable to work as a freelance graphic artist.
Rae and Reilly also went to the police to press charges. The Toronto police then appealed on social media for more victims to come forward.
As a result of this shameless trawling for victims, five more women came forward to complain about Elliott. Elliott was charged again in relation to Reilly and Rae, although the charges involving Rae were later dropped before trial.
The police used a software programme to search tweets between Elliott and Guthrie; however, they omitted to search against other users who surrounded and influenced the interactions of these two particular protagonists.
Meanwhile, Guthrie went on a media blitz designed to promote herself as a professional victim. She gave a number of press interviews, was photographed drinking from a flask labelled “male tears” and gave a TEDx talk in September 2013 on the subject of online harassment.
The trial became a marathon, which ran over 18 months from January 7, 2014 into July 2015. Unsurprisingly, it was a cause celebre, with many taking Elliott’s side in the cause of freedom of speech. It was also portrayed as a gender war.
The defence counsel argued that the complainants were not genuinely afraid, and that they had been regularly talking in a derogatory way about Elliott amongst themselves. He cited:
“numerous examples where they were just taunting Mr. Elliott to all their Twitter followers. You’re not afraid of the bear if you’re going up to the bear and poking it.”
Hmmm. Too right.
I will have more to say about this case, and the judge’s decision, when I can.