Montreal woman's arrest highlights legal risks of social media

A Montreal woman's decision to post an Instagram photo of a controversial piece of anti-police graffiti took her online action out of cyberspace and ultimately into a Montreal courtroom Monday.

The image Jennifer Pawluck posted online showed Cmdr. Ian Lafrenière, a Montreal police spokesman, with a bullet hole through his head. Pawluck says she only took the picture and shared it, and was not the person who created it.

However, she was formally charged with criminal harassment and intimidation against a high-ranking Montreal police officer.

Pawluck was picked up by police at her home last Wednesday, questioned for hours and then released on a promise to appear in court.

Pawluck, accompanied by six friends, appeared in court on April. 17 and pleaded not guilty. Further proceedings were postponed until May. 24.

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Police have said there is more material relating to the arrest, but the particulars aren't yet known. However, her case spurred questions in both mainstream and social media about online rights and freedoms.

The use of online sources has become an important tool in crime prevention and saving people. But sometimes a seemingly innocuous post can be a motive for arrest.

Det. Jeffrey Bangild, an officer in charge of a crime and family service unit in Toronto, works with youth and has become increasingly active in police use of social media.

'There’s certainly a line that has to be judged on any situation, whether it is freedom of speech or if there is a criminal involvement.' —Jeffrey Bangild, Detective

"We’ve had instances where we’ve relied on social media to locate individuals. There have been a number of cases where suicides and crimes have been prevented," Bangild said.

He cited a recent incident where a friend spotted another youth’s suicide plans online and informed the police, who were able to intervene.

But Bangild admits there is another side that is difficult to navigate, because social media itself is in its "infantile stage."

"There’s certainly a line that has to be judged on any situation, whether it is freedom of speech or if there is a criminal involvement," he said.

Who do courts find guilty?

Whether it’s a letter, a shocking picture, or in this case a piece of politically inspired graffiti, "social media leverages that [very thing] into a far wider and completely uncontrollable breadth of audience," said Dan Burnett, a Vancouver-based lawyer and professor at the University of British Columbia.

Burnett says that the question for police is whether the person who posted such content is also taking responsibility for it. 

He adds that in the eyes of the law, they are publishers of that material and are thereby accountable to the same degree as traditional publishers.

"The law treats somebody who publishes as responsible, regardless of if they are the first publisher or the one who expanded publication to a new audience of thousands more people, with very limited exceptions," he said.

Putting that sort of image online can result in the publisher being on the receiving end of a defamation case, or if the post was racist, for example, a human rights complaint.

But what does this say about freedom of speech in social media? And how do we know when a post is actually breaking the law?

Freedom of speech

It’s not that hateful or derogatory statements are to be celebrated, but, rather, young people who use social media often are unaware what is actually defamatory.

According to the law, something deemed a genuine (even if unintentional) threat is grounds for arrest.

According to the law, something deemed a genuine (even if unintentional) threat is grounds for arrest.

Det. Bangild said there is a difference between stating an opinion of dislike and implying that violent actions should be taken.

He gives the example of someone saying they do not like a certain political party – which they would be free to do. But if that person then adds or implies they would kill a member of that party, then the person has crossed the line.

A large part of the issue is that social media threats are relatively new phenomena and legislation has not yet caught up with what has now become commonplace.

Although social media has operated as a means of bringing injustices suffered by some to the attention of a wider audience, there are pitfalls with such exposure as well as benefits.

It’s a matter of new laws and ongoing education being needed, according to Sydneyeve Matrix, a professor in the Department of Media and Film at Queen's University.

"There have got to be some new laws in place, but we have a long way to go. Whether it’s lawyers or teachers, we need to have conversations about the power of these mobile technologies," Matrix said.

‘It can be interpreted as endorsement’

Montreal criminal defence attorney Eric Sutton told CBC News that, in the Pawluck case, the Crown would have to prove Lafrenière reasonably feared for his safety as a result of the Instagram photo.

'It’s very easy for us to use these incredibly powerful computers that we have in our pockets and purses and hands — our cellphones — it’s very easy for us to use them without fully understanding the power of them.' —Sydneyeve Matrix, Queen's University

Sutton added the arrest could be about police trying to send a message of "zero tolerance for anything that's seen as threatening to their image."

But Det. Bangild said a threatening image like the Instagram graffiti — which names the person and suggests he should receive a bullet in the head — would warrant the attention of the police, even if the police were not the intended target.

Matrix says the issue is that many people, especially youth, who frequently use social media do not yet understand the implications of such posts.

"I hate to say it but there’s a digital literacy issue here. It’s very easy for us to use these incredibly powerful computers that we have in our pockets and purses and hands — our cellphones — it’s very easy for us to use them without fully understanding the power of them," Matrix said.

"We have to realize that when we take a picture of something and send it out, it can be interpreted in a million ways. It can be interpreted as endorsement. And it could spread a message far and wide that does amazing damage, whether it’s reputational damage or whether it inspires behaviours that we would never condone."