05/02/2020 2016 ONCJ 35 (CanLII) | CanLII The litigation in this case does not directly concern the proper use of Twitter or its potential to benefit or harm society. But in order to determine the narrow issue of whether Mr. Elliott committed an offence in relation to Ms. Guthrie and Ms. Reilly, I have to determine how a hashtag should be viewed. The prosecution and complainants rely on all Mr. Elliott’s tweets, including those that used hashtags that Ms. Guthrie and Ms. Reilly used. Mr. Elliott’s use of #AOTID prompted Ms. Guthrie to go to the police. In addition to the qualified evidentiary basis that I have previously explained, I have the principle of freedom of expression and its limits on which to draw. Twitter not only expands access to readers to those who do not have access to the mass media, it is an alternative to the mass media. It has the potential to develop so that more and different points of view can be promoted, including those that are not reflected in traditional media. Since tweets can include links, I can conclude, just from the evidence, that Twitter can spread well-considered articles as well as the tweeter’s opinion. Any limitation on its use that is not necessary to prevent criminality will limit this potential. It will not be consistent with the freedom of expression that is essential to a free and democratic society. Once someone creates a hashtag, anyone can use it. Everyone has to be able to use it freely; anything less will limit the operation of Twitter in a way that is not consistent with freedom of expression. On the other hand, someone may want to participate in a discussion anchored by a hashtag but not want to communicate with a particular person. Of many possible reasons for this, one may be that the person to be excluded does not want to hear from the other or has even told the other to stop contacting them. To interpret using a hashtag that you know another person also has used, may use, is using for an event, or even created (by using it first) as communicating indirectly with that person would prevent legitimate use of the hashtag. No one could use the hashtag without checking that anyone who did not want to hear from them was not using or following it, or might use or follow it. The complainants’ position, and that of the Crown, is that the repeated communication alleged of Mr. Elliott consists of tweeting using handles, mentions and hashtags. The hashtag branch of the argument raises the general issue of whether communication by Twitter using a hashtag can accurately be called communicating with a person at all, never mind directly or indirectly. If a person includes a hashtag in a tweet only for the purpose of communicating to someone who they know reads the hashtag, then this position is correct. However, given the nature of Twitter and hashtags, in order to prove that the intention of using the hashtag is to communicate with a particular follower of it, one would have to reasonably exclude any legitimate intention to refer to it or to communicate with anyone else who might be following it. The essence of Twitter and hashtags, as the limited evidence in this case demonstrates, is to facilitate communication between people with like interests who voluntarily choose to follow certain topics or people and see what is being said about and by them. If you can’t use hashtags – whatever hashtags you want and no matter who created them – then you can’t use the platform to its potential. Even with respect to tweeting in general, using Twitter while being protected from seeing another person’s tweets or having them see and comment on yours is unworkable. You can limit seeing another person’s tweets by blocking them, by not opening another person’s feed and by asking your friends not to retweet tweets from people you have blocked. And you can avoid reading their replies by not writing to them. But if you tweet with hashtags and follow hashtags, you are going to see every tweet that contains those hashtags, and anyone who wants can follow them. A blocker can choose to avoid seeing tweets with hashtags they follow from someone they have blocked, but they lose the benefit of the hashtag discussion by that choice. In this case, Mr. Elliott repeatedly used the AOTID hashtag just before Ms. Guthrie went to the police. Crown counsel in her submissions relies on the contents of Mr. Elliott’s tweets to show that he was referring to Ms. Guthrie. @CromartyHeather tweeted to him “And yet you keep bringing her up. In every convo. Ones she’s not at all involved in. you stalk her event’s hashtag.” Then “She doesn’t talk about you because she doesn’t like you. YOU, however, can’t stop thinking about her. Telling.” Mr. Elliott’s reply is his defence, at least on the hashtag issue. “She doesn’t own a hashtag. Twitter’s public. What kind of elitist control freaks are you? Censoring Twitter? Go to Facebook”. Crown counsel submits that Mr. Elliott was referring to Ms. Guthrie and that he was aware of Ms. Guthrie’s connection to #AOTID. In this, Crown counsel is correct. There can be no doubt that Mr. Elliott was referring to Ms. Guthrie and that he was aware of Ms. Guthrie’s connection to #AOTID. On November 15, Mr. Elliott’s tweet about creating a hashtag said suggesting you own it shows that you do not understand Twitter’s true value. Ms. Guthrie testified that it was public information that #AOTID file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 30/43