Case commentaries
| Published date | 01 July 2016 |
| Author | Jeremy Gans |
| DOI | 10.1177/1365712716641564 |
| Date | 01 July 2016 |
| Subject Matter | Case Commentary |
Case commentaries
Jeremy Gans
Melbourne Law School, University of Melbourne, Australia
Social media—Canada
@jwhyteappleby My tone is fine til control-freaks like .@ladysnarksalot try to change the rules of Twitter.
‘Creeping’ the #TOpoli hashtag? [@greg_a_elliott: 8/12/2012, 10:24 AM]
@tapesonthefloor @rachelmack @amirightfolks You have accomplished nothing, and you will fall. Enjoy
your AIDS, #TOpoli faggots. [@greg_a_eliott: 8/12/2012, 11:40 AM]
RT @tapesonthefloor G iven that my ‘#TOpoli str ategies’ involve #Wi TOpoli being able to cont ribute
unharassed, @greg_a_elliott, you’re not actually that far off [@ladysnarksalot: 8/12/2012, 5:04 PM]
Hey@LadySnarksalot Why ‘favourite’ my tweet when you say you want NO interaction with me? Make up
your mind. #Topoli#TOmedia [@greg_a_elliott: 8/12/2012, 5:59 PM]
These are four out of thousands of ‘tweets’ (short messages of up to 140 characters) considered by
Knazan J of Ontario’s Court of Justice in the recent prosecution of Gregory Elliott on a charge of
criminally harassing two women. The lengthy reasons in RvElliott, 2016 ONCJ 35 deservedly gained
international attention for their detailed analysis of how and when uses of the social media service
Twitter can amount to harassment. Justice Knazan ultimately found that Elliott knowingly harassed two
other Twitter users (@amirightfolks and @ladysnarksalot) by sending tweets that included hashtags
(#TOpoli) that he knew they followed, but that the harassment was not criminal under Canada’s
harassment offence as there was no proof that the tweets (none of which included actual threats) either
caused the complainants to fear for their safety or could reasonably have done so.
A further point of interest in Knazan J’s reasons for readers of this journal is his discussion of various
difficulties of proof when it com es to social media. His judgment c ommenced with an immediate
evidentiary problem:
One cannot understand this case without knowing about Twitter. The evidence about Twitter—what it is, how
it works and how its users understand that it works—came from four sources: the evidence of Police
Constable Dayler, who is qualified as an expert in Twitter; the evidence of Ms. Guthrie, who works as a
consultant and depends on Twitter for her work, and who tweets and reads others’ tweets extensively; the
evidence of Ms. Reilly, who had sent over 300,000 tweets at the time she testified; and the tweets of Mr.
Elliott, who did not testify but expressed his views about Twitter in some tweets that he sent. This judgment
does not preface every reference to Twitter with the words ‘based on the evidence,’ but all the references to it
come from these four parts of the evidence.
Corresponding author:
Jeremy Gans, Melbourne Law School, University of Melbourne, 185 Pelham Street, Carlton, Victoria 3053, Australia.
E-mail: jeremy.gans@unimelb.edu.au
The International Journalof
Evidence & Proof
2016, Vol. 20(3) 250–253
ªThe Author(s) 2016
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DOI: 10.1177/1365712716641564
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