SELECTED CASE LAW
ONTARIO:
2016 ONCJ 35 involves criminal harassment charges stemming from Twitter messages directed at two feminist activists. Mr. E was known in for having problematic communication with female Twitter users and many had accused him of harassing women.
This case examined the use of hashtags, Twitter handles, sub-Tweeting, and indirect Tweeting. The court considered the volume of Tweets, the content of the Tweets, and the women’s responses to Mr. E’s Tweets.
The Court found that Mr. E could not have known that Ms. G felt fearful. Blocking him and tell-ing him to stop Tweeting at her or about her was not sufficient notice that his behaviour was causing her fear. The court found that no one had directly told Mr. E that his behaviour was harassing Ms. G and that his Tweets were neither threatening nor sexual on their face. How-ever, the court did find that Mr. E was reckless as to whether Ms. G was harassed. He was aware that she did not want to hear from him, but he continued to Tweet at her handle or in reference to her. In assessing her fear, the court stated:
That [Ms. G] is a woman is relevant. Crown counsel submits that “a reasonable person, especially, a woman, would find [Mr. E’s] tweets and behaviour concerning and scary.” Women are vulnerable to violence and harassment by men, and [Ms. G] advocates for understanding and change. I must judge the reasonableness of [Ms. G’s] fear in all the circumstances and on the evidence.[1]
The court held that Mr. E’s volume of Tweets were harassing, but that there was no conclusive evidence of contact that could cause her a reasonable sense of fear in this case.
In the case of Ms. R, Mr. E also Tweeted at her repeatedly and she explicitly asked him to stop multiple times. The court held that Mr. E’s cruel and repetitive Tweets were harassing, but that she did not express any feelings of fear to the police, only frustration. Ms. R did state that she was concerned his behaviour would go from online to offline. She also responded to Mr. E forcefully on Twitter. The courts held that Ms. R did not express fear on Twitter or in her testimony.
The court held that although both women were sincerely harassed by the offender’s tweets, and that the offender knew, or ought to have known, that the women felt harassed,[2] Mr. E’s tweets did not amount to criminal harassment because neither woman reasonably communicated fear for their safety.
The Court concluded by stating that “asking a person to stop reading one’s feed from a freely chosen open account is not reasonable. […] To subscribe to Twitter and keep your account open is to waive your right to privacy in your tweets. […] Blocking only goes so far, as long as you choose to remain open.”[3]
Mr. E was acquitted.
[1] 2016 ONCJ 35 at 442.
[2] 2016 ONCJ 35 at 77, 83.
[3] 2016 ONCJ 35 at 83.
Criminal Offence(s): Criminal Harassment