Dodowarrior44 v FruitRollUp 2020 Civ 2

Dodowarrior44 v FruitRollUp 2020 Civ 2

Date of judgment	6th May 2020
Judge	Judge Wolf
Grounds	Civil harassment (common law)
Verdict	D held liable for civil harassment
Result	D had to make a public apology to P in #general-announcements D had to pay 80% of P’s legal fees
Applicable persuasive precedent	Civil harassment is defined as “the intentional continued interaction with an individual or group by another individual or group that causes the victim to become intimidated, feel pressured, or generally uncomfortable”, 8 Overturns NovaSM v Dickhead68 2019 Civ 1 Unwanted, spam, and/or mass pinging constitute civil harassment, 13

Arguments

[1]. The case before this court concerns whether or not pinging a user several times after that user has requested the pinging to cease falls within the definition of harassment at common law.

[2]. The facts of the matter are that the plaintiff requested the defendant to stop ping them. The defendant then pinged the plaintiff twice within the following six minutes, and a third time the following day. Leading up to this conflict, the defendant accused the plaintiff of being a facist. The reason for this is unclear, but may have been connected to earlier statements made by the plaintiff in conversation with a third party that may been interpreted by the defendant as fascsit rhetoric.

[3]. The plaintiff argues that the defendant was instructed to not ping the plaintiff, and after this instruction the defendant continued to do so. It was reasoned by the plaintiff that this was due to their political views, as evidenced by the defendant calling them a fascist.

[4]. In defence of their actions, the defendant argues that the request to ping was by no means legally binding. Although the language used may be perceived to be impolite, it was an expression of free speech based on the conclusion reached by the defendant that the plaintiff spoke in a manner akin to a nazi sympathiser.

[5]. The evidence presented to the court by the defence was deemed somewhat misleading, if not confusing. Two screenshots were presented as representing the same conversation. If separated, the argument that there is a perception of the plaintiff speaking like a fascist is weakened. It is for this reason that the court was forced to treat the evidence provided by the defence with greater caution.

[6]. Included in the evidence provided by the plaintiff was the testimony of three individuals who were witnesses to the events that unfolded. This was mostly irrelevant, as the screenshots already factually established what had taken place. But an argument was raised by the defence that some of the questions were irrelevant or worded in a biased manner. I am inclined to agree. Furthermore, the witnesses gave different answers to some of the questions and thus only weakened the plaintiff’s case.

[7]. In the end, the court found the direct evidence of the interaction between the plaintiff and defendant to be the most reliable, and taking into account evidence outside of that, due to the quality and nature of it which has been commented on, would only lead the court into error in a finding on the facts.

Legal reasoning

[8]. The definition proposed by the plaintiff for harassment was “the intentional continued interaction with an individual or group by another individual or group that causes the victim to become intimidated, feel pressured, or generally uncomfortable.” This is a thorough and adequate definition to be applied in this case.

[9]. Harassment is thus made up of four elements: 1\. Intentional continued interaction with; 2\. An individual or group; 3\. By another individual or group that; 4\. Causes the victim to become intimidated, feel pressured, or generally uncomfortable.

[10]. The first element concerns intentional continued interaction. There was no dispute that an intentional interaction took place. However, what was disputed is if three pings could amount to harassment. Thus it must be considered if this is to be interpreted as a continued interaction. In my eyes, it rightly can be perceived as continued. Continue can be defined as to “persist in an activity or process” or “recommence or resume after interruption” according to the Oxford dictionary. In either definition, the pinging was continued. On the first definition, the defendant persisted with the activity of pinging the plaintiff. Under the second definition, the defendant recommenced or resumed pinging after interruption. The interruption in this case was the request to stop being pinged, and the lapse in time between the second and third ping after the request can be seen as another period that was interrupted by the ping. Thus the first element is satisfied.

[11]. The second and third element are indisputably satisfied. The defence (as an individual) had intentional continued interaction with the plaintiff as an individual.

[12]. The fourth and final element is whether the actions of the defendant caused the plaintiff to become intimidated, feel pressured, or generally uncomfortable. The test I apply is would a reasonable person in the position of the plaintiff be likely to become intimated, feel pressured, or generally uncomfortable by the defendant’s actions? The answer I come to is yes. In the lead up to the pings the plaintiff was accused of being a fascist, and was then pinged several times after expressing they did not wish to be pinged. This is enough to make a reasonable person in the position of the plaintiff feel pressured and generally uncomfortable. Pinging, by its nature, is a means of alerting an individual or group of people on Discord. It follows then, that if one is pinged the alert they receive will be brought to their attention and that repeated instances of these pings would naturally create in an individual a pressure to respond, or if there is a desire to not be pinged, make them uncomfortable. The fourth element therefore appears to be met.

[13]. The next issue to consider is whether the conduct that took place fits within the scope of the common law as a kind of harassment that can receive compensation. Not all actions, merely by being done by the defendant, ought to be concluded as being in the public interest to restrict. This would cause a perverse outcome in the law where something as reasonable as a peaceful protest could be deemed a form of harassment that requires legal compensation. In this case, it is quite clear that pinging has fallen within harassment before and I see no reason to deviate from that. Pinging, if compared to a real life interaction, is much like poking someone to get their attention. It is not the same as a mere expression of free speech. Thus there is no free speech to protect when harassment takes the form of pinging.

[14]. Finally, we turn to damages. The plaintiff has requested compensation for their legal fees and a court order requiring the defendant to issue a public apology. Legal fees are clearly a form of monetary damage, but can only be accepted if the civil hearing was warranted in the first place. It seems perfectly acceptable in a civil society that when an individual is proved to be harassed they are owed some form of compensation. A public apology is a minimum standard that encourages others by example of the outcome of such a hearing to not commit harassment themselves.

Verdict

[15]. I find the defendant responsible of harassment and order them to submit a public apology to the plaintiff in #general-announcements within 24 hours. The defendant is also ordered to pay 80% of the plaintiff’s legal fees as soon as is practicable to do so. It is the plaintiff’s duty to present sound evidence of the legal fees incurred by their legal representation.