Judge In Free Speech Case Over Twitter Fight Apparently Fooled By Parody Account

Free Speech

from the ouch dept

Tue, Jan 26th 2016 3:35am — Mike Masnick

We just reported on a good ruling in Canada that threw out a criminal (yes, criminal) harassment case over what appeared to be a somewhat ridiculous Twitter spat. As we noted, basically no one came out of the spat looking particularly good, but to argue that such a spat should be criminal seemed ridiculous no matter how you looked at it. In the ruling, the judge did find that the tweets sent by Greg Elliott were harassing, but that it wasn't criminal because of the circumstances, including the fact that it was a public discussion and many of the tweets involved Elliott trying (perhaps aggressively) to defend himself against attacks against himself. However, as the very first commenter on our post pointed out, and which other reporters have now reported as well, at least one of the tweets that the judge pointed to as an example of Elliott's aggressive language actually came from a parody account.

The tweet in question came from the @greg_a_eliott account, which is ever so slightly from Greg Elliott's real account, which spells his name (as it is spelled) with two "Ls" instead of just one: @greg_a_elliott. But apparently the judge missed that and assumed the following homophobic tweet was from Elliott:

The judge specifically cites that tweet in the ruling, and four separate times notes that at least one of Elliott's tweets were homophobic:

His language is vulgar and sometimes obscene, and once inexplicably homophobic...

It didn't really have an impact on the case, as the judge still tossed out the charges, but it does still seem at least mildly problematic, as the judge clearly regularly referenced that tweet, even though admitting that it wasn't in the evidence that was submitted, but which he found on his own. The judge went through a somewhat long explanation, noting that he found the tweet on his own and was at least somewhat confused why it had not been entered into evidence originally, suggesting that the search tool used by the police, called Sysomos, did a bad job.

Again, in this case, it didn't really matter, but this may be something to watch out for in future cases, where such mistakes could have a huge impact.

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Filed Under: canada, criminal harassment, free speech, greg elliott, harassment, parody account, twitter fight

16 Comments

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That Anonymous Coward (profile), 26 Jan 2016 @ 3:56am

Worrying that a Judge decided to go searching for things not placed before the court, found something that had nothing to do with the litigants before him, and then made a ruling including that information.

It will be impossible to put the genie back into the bottle, the record reflects that one litigant was homophobic. The system the police are using is inherently flawed if it was unable to separate a "parody" account from the real one.

So when does this rubicon get crossed with an even worse outcome for someone, where a failed search gives a Judge outside information and a ruling is made that seals the defendants fate... because no one thought to double check the results because the tech is good?
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- Anonymous Coward, 26 Jan 2016 @ 5:04am
  
  Re:
  ...a Judge decided to go searching for things not placed before the court...
  
  I didn't think they were supposed to do that. Maybe things are different in Canada.
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  - Anonymous Coward, 26 Jan 2016 @ 5:27am
    
    Re: Re:
    If it had been presented as evidence in the suit by the plaintiff the defendant's lawyers should have been able to point out that it was from a different account. The judge finding it on his own and including it in the decision ran around the process. I wonder if the defendants lawyers will challenge the language a dismissal in their favor.
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  - PaulT (profile), 26 Jan 2016 @ 5:44am
    
    Re: Re:
    I can't see how it's considered allowable anywhere, to be honest. Depending on the system, jurors merely contacting outside parties can be ruled enough for them to be thrown out or a mistrial. The idea that a presiding judge can just go looking at the defendant on Twitter seems very problematic. I mean, surely this is why there's a discovery process, so that both sides have a way to counter evidence being presented to the court - something not possible if the court are doing their own research.
    
    Even if the evidence presented is the same as what he finds, he could still have his verdict coloured by linked opinion pieces, tweeted reactions or accusations that hadn't been posted before the trial started, etc. IANAL, Canadian, etc., but all of this seems weird to me.
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  - Anonymous Coward, 26 Jan 2016 @ 6:32am
    
    Re: Re:
    For good reason. He was trying to establish context for the out-of-context tweets submitted into evidence. Many of the tweets contained hyperlinks. Context was important because of the nature of the charge.
    
    The article has exactly the right caveat wrt using the internet as a repository for evidence. Seems like the procedures for doing so are too ad hoc and mistakes will happen.
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    - Anonymous Coward, 26 Jan 2016 @ 2:01pm
      
      Re: Re: Re:
      For good reason. He was trying to establish context for the out-of-context tweets submitted into evidence.
      
      In the US system, that's what the attorneys for the two sides are supposed to do. Letting judges go out looking for additional evidence on their own under the guise of "getting the complete picture" would mean that they could always do that. I don't see how it could be a fair trial if instead of facing a prosecutor and a judge, the defendant was facing two prosecutors.
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    - PaulT (profile), 27 Jan 2016 @ 1:59am
      
      Re: Re: Re:
      "Many of the tweets contained hyperlinks."
      
      So? If those are important, then the pages they linked to should also be presented to the court. In fact, given that the target can be changed at any time, it's important that these be gathered as close to the start of the case as possible.
      
      "Context was important because of the nature of the charge."
      
      Then, surely this is what the lawyers are meant to be doing? They either present evidence in the correct context or the opposing lawyer can present this to protect their client if they feel the current context is incorrect. Having the supposedly impartial judge do it instead is very dangerous.
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Ninja (profile), 26 Jan 2016 @ 4:14am

In an age where reblogging, reposting, retweeting and sharing is increasingly common this is an issue indeed. I have this habit of following stuff that don't fall in line with my views even if they are very wrong. For instance a page in facebook that is far right to the point of advocating totalitarianism as a solution to the problems of the country. I don't agree with it and I think the ones running the page are assholes but I follow it to 'know the enemy', know their reach and their reasoning. It would be like following the MPAA to keep in touch with copyright abuses or the KKK to keep in touch with their craziness or even ISIS for the same reason. It's not that I condone these people, it's that we are better off reading dissenting opinions (these would be the extreme opposite of course.

And the way things are going now this is very worrying because following some ISIS page could get me in the wrong lights to our scaredy, overzealous law enforcement.
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- Ninja (profile), 26 Jan 2016 @ 4:15am
  
  Re:
  In time: I have shared stuff I don't agree with explaining why I think it's wrong. I was adding it to the original comment but it got lost.
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Paul Renault (profile), 26 Jan 2016 @ 6:52am

Wouldn't the prosecutor also have been fooled?
Or lied?
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- PRMan, 26 Jan 2016 @ 7:21am
  
  Re: Wouldn't the prosecutor also have been fooled?
  No. The judge found it ON HIS OWN OUTSIDE OF COURT and then ruled on it. It seems both the Plaintiff and the Defense hadn't included it because both realized it wasn't the client saying those things.
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rikuo, 26 Jan 2016 @ 8:08am

Just want to say this is a bit refreshing. I'm an anti-feminist and every other article I've read concerning this case makes mention of the feminist drama on the Internet...but Techdirt doesn't. There's nary a mention of it in this article or the preceding one.
Gotta say, it's nice to read about this case in such a neutral tone, there's no indication given as to whether the author is feminist or anti-feminist.
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- nasch (profile), 26 Jan 2016 @ 10:40am
  
  Re:
  I'm an anti-feminist
  
  I'm curious - what's your definition of feminist or feminism?
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alternatives(), 26 Jan 2016 @ 9:08am

Rule on the law and facts brought before them.
but which he found on his own. The judge went through a somewhat long explanation, noting that he found the tweet on his own and was at least somewhat confused why it had not been entered into evidence originally, suggesting that the search tool used by the police, called Sysomos, did a bad job.

While I say "kudos" to the Judge for at least taking an interest - alas they are supposed to be restricted to the law and the facts BROUGHT BEFORE THEM.
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assman, 26 Jan 2016 @ 9:54am

Re: http://asymptom.com/
crawl in a hole and die a slow, festering death
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Anonymous Coward, 26 Jan 2016 @ 10:29am

This is why the judge is not supposed to be looking at evidence not presented. If too much evidence is missing, then just rule that the burden of proof was not met. Don't go looking for it yourself. (But at least he did admit he did this, rather than simply looking for it, biasing himself, and using his findings an as excuse to rule a certain way without telling anyone why.)

I suppose the defense could technically move to strike such language from the decision, but they probably don't want to risk any sort of reopening of the case after a favorable outcome.
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