Artistic Expression, Content Regulation / Censorship, Hate Speech, Indecency / Obscenity
Lopes v. Estado de São Paulo
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The court dismissed criminal harassment charges brought against a blogger by two female activists who brought because they did not establish that they had a reasonable fear for their safety. Additionally, the court held that the blogger’s messages using hashtags on Twitter is “similar to announcing a public meeting,” and thus messages that reached the activists through hashtag use were simply the blogger’s protected speech, albeit it was immature and childish. The case concerned Gregory Alan Elliott, a blogger, who tweeted insulting and homophobic messages at two female activists who were advocating against a video game that allowed users to punch a prominent American feminist called Anita Sarkeesian.
Gregory Alan Elliot (the defendant), a graphic artist, was charged with harassing women rights activists Stephanie Guthrie and Heather Reilly in contradiction to section 264 of the Criminal Code. On 2012, the defendant engaged in a Twitter conversation and debate with Ms. Guthrie about a violent game created by Bendilin Spurr. The game was a simulation that allowed users to punch a prominent American feminist called Anita Sarkeesian. The defendant continuously tweeted messages to Stephanie Guthrie and Heather Reilly concerning their campaign against the game’s creator.
After several heated exchanges both Guthrie and Reilly proceeded to block the defendant. Therefore, inhibiting the defendant from seeing their tweets. However, Elliott continued to tweet about them through ‘hashtags’ generated by both Guthrie and Reilly. They also advised the defendant to stop ‘tweeting’ to and about them. On November 2012, after Elliot continued to send tweets about the two activists. Both Guthrie and Reilly on, separate dates, filed criminal complaints against the defendant for harassing them through Twitter.
The state prosecution charged Gregory Alan Elliott with criminal harassment contrary to section 264 of the Criminal Code of Canada. The defendant did not testified during the proceedings. However, he established that some of his ‘tweets’ reflected his view concerning the public nature of Twitter. [p. 60]
The Ontario Court of Justice indicated that the state prosecution had to prove the five elements of criminal harassment: 1) repeated communication; 2) that the complainants were harassed; 3) that the defendant knew they were harassed; 4) that the communication caused the complainants to be fearful of their safety; and 5) that the fear was reasonable. All the elements must be proved beyond reasonable doubt.
Justice Brent Knazan delivered the judgment of the Ontario Court of Justice. The main issue in this case is if the defendant, Gregory Alan Elliot committed the crime of harassment through Twitter against Stephanie Guthrie and Heather Reilly. According to Judge Knazan the state prosecution had to prove the five elements of criminal harassment concerning both of the complainants: 1) repeated communication; 2) that the complainants were harassed; 3) that the defendant knew they were harassed; 4) that the communication caused the complainants to be fearful of their safety; and 5) that the fear was reasonable. All the elements must be proved beyond reasonable doubt. Justice Knazan concluded that the elements of the crime of harassment were not met with relation to Stephanie Guthrie or Heather Reilly.
Firstly, Knazan established that “Twitter is a public forum.” [p. 55] The Judge discussed the public nature of Twitter and how all of its users comprehend this element of the social media platform. [p. 57] The Judge also stated that Twitter is used to convey the opinions of its users and that “[a]ny limitation on its use that is not necessary to prevent criminality will limit this potential.” [p. 58] The Judge stressed that it is important that the use of Twitter remains free and that the limitation of it could be inconsistent with freedom of expression. [p. 58] Moreover, Justice Knazan discussed the role of ‘hashtags’ on Twitter and considered that they are “similar to announcing a public meeting.” [p. 60]
The Court held that the first element of the offense of harassment was met as Elliott repeatedly ‘tweeted’ messages to or about Ms. Guthrie knowing that she would read them. Regarding the second element, Ms. Guthrie’s belief of being harassed came from the idea that she could ‘tweet’ about any topic she wanted without anyone responding in the manner in which the defendant did. However, she was in fact harassed because, according to the Court, even though ‘hashtags’ permit a freedom of discussion the defendant used them with the intention of communicating with Ms. Guthrie. Concerning the third element of the offense, the Court deemed that the defendant had no knowledge that he was harassing Guthrie. According to Judge Knazan the defendant was writing his ideas pursuant to the rules established by Twitter and the “Canadian value of freedom of expression.” [p. 65] The Court also considered if the act of blocking the defendant made by Ms. Guthrie conveyed that she was being harassed. The Court answered that it did not. The ‘tweets’ sent by the defendant after he was blocked were accompanied by ‘hashtags’ Ms. Guthrie used. However, the ‘hashtags’ were not restricted to him because Ms. Guthrie blocked him. According to the Judge, the defendant was conveying an opinion protected by his right to freedom of expression and opinion even when those tweets were insulting and homophobic. [p. 69-70]
As for the fourth element, the Judge also held that Ms. Guthrie did in fact fear for her safety. However, the Judge asserted that the fifth element was not met, as the fear was not reasonable. Justice Knazan considered that Ms. Guthrie’s fear originated from the volume of the tweets sent by the defendant. Furthermore, the Court found unreasonable Guthrie’s perception that she could tweet about several topics and not be exposed to the defendant’s opinions even when they were spurious and insulting. [p. 76] The Judge also added that Elliott’s tweets may have been immature and childish, but it does not amount to a basis of fear, “especially if the recipient is herself still making negative comments about the sender.” [p. 76] Moreover, Justice Knazan submitted that a ‘hashtag’ is open to the world and Guthrie’s perception that the defendant could not use her ‘hashtags’ was also unreasonable. [p. 76-77] The Judge concluded this assessment by establishing that it would have been different if the defendant ‘tweeted’ messages of violent or sexual nature.
Regarding Heather Reilly, the Court also found that the first element of the offense was met, because the defendant continued his intention to communicate with Ms. Reilly even though she had blocked him and told him to stop ‘tweeting’ her. The Judge also deemed that the second element was met, as Ms. Reilly felt harassed by the constant ‘tweets’ sent by the defendant to her. As for the third element, Justice Knazan established that the defendant knew he was harassing Ms. Reilly. On various occasions Ms. Reilly told the defendant to stop contacting her. The Judge considered that normally the defendant conveyed his opinions even when they were insulting and spurious, but in this case he harassed her and it had nothing to do with an argument or an opinion.
Finally, the Judge established that the state prosecution did not prove beyond reasonable doubt that Ms. Reilly feared for her safety. Justice Knazan asserted that having a Twitter account “is to waive your right to privacy in your tweets.” [p. 84]
For these reasons, Justice Knazan dismissed the two charges of criminal harassment contrary to section 264 of the Criminal Code against the defendant, Gregory Alan Elliott.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression because the Court dismissed the criminal charges against the defendant. The decision by the Ontario Court of Justice is a significant one as it is the first case in Canada that discussed and analyzed the dynamic of Twitter in relation to the right of freedom of expression. The Judge described Twitter as a public forum open to different opinions. However, it remains to be seen how social media platforms will be able to balance freedom of expression and online harassment.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The judgment rendered by the Ontario Court of Justice is the first one to discuss the right to freedom of expression on the social media platform, Twitter. The decision can be appealed to the Court of Appeal for Ontario.
Let us know if you notice errors or if the case analysis needs revision.