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carriesthewind · 2 years

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Hello tumblr! I am here to discuss some drama today! (Oh dear god I can't believe that this is what got me to finally join tumblr.)

As you may know, AO3 recently suspended a writer’s account, and the writer isn’t happy about it. They have made several public posts about it, including a very long post responding to the letter they received from AO3 in response to their appeal to lift the suspension. Now, I’m not particularly familiar with this writer. I’ve heard their name enough to recognize it, I know I have heard some rumors about them – some good, some bad. But I have never read their writing or their tumblr before, and I didn’t have any preconceived opinions about them.

But since this drama has entered my orbit from multiple sources, I decided to do a close read of their post responding to AO3. I do this fairly regularly, as a mental exercise to practice making myself a more careful consumer of media in general, social media in particular. But close-reading this particular post made me angry enough that felt the need to write up my analysis and share it.

A few disclaimers and notes before we begin:

First, I am just going to refer to the person under discussion as the “writer” – I include this person’s user name in a screenshot, so am not hiding their identity, but I’m not doing this to target them. This is an analysis of two of their posts, not of their life or online activity outside of the post.

Second, I am going to be giving the writer every benefit of the doubt I can, and am starting my reading by assuming they are acting in good faith.

Third, I am going to take the text under discussion under its own terms as much as possible, without referring to outside content. I am going to be analyzing two posts by the writer; the long post they made in response to AO3’s reply, and a shorter post that they made that long post in reply to. The exceptions to this will be the TOS of AO3, since they are central to the dispute, and a few other posts by the writer on the same subject. I will be using those other posts only when I need them to understand the writer’s argument in the main post we are looking at.

Let’s begin.

There’s two things that jump out at me from this paragraph right away. First, if we look at AO3’s TOS, there is a clear path for filing an appeal, and there is no right to a response from being pinged on Tumblr or responding to messages through other venues. There is also no deadline for the team to respond to an appeal. In fact, the TOS repeatedly note that they cannot guarantee a speedy response. Given the size of the archive, five days seems far from unreasonable.

However, this waiting period would absolutely be frustrating, and it is entirely understandable that the writer would be frustrated and angry. Speaking personally, I know that I have angrily tried to contact a company via non-official means when I felt they had wronged me and were refusing to respond to my official messages. The writer isn’t doing anything wrong here by reaching out this way and being upset at the delay – but AO3 isn’t doing anything wrong by not replying to these messages, either.

Second, this sentence, “My legally copyrighted property under the terms of Fair Use is still in kidnapped status, which is not actually legal”? This sentence is nonsense. It is so nonsense that whenever I look away my brain rewrites it. It is so nonsense I am not going to even try to break down the very many ways it is wrong, because that would double the length of this monster of a post. I will instead just state: by agreeing to AO3's TOS, the writer has agreed to allow their account to be suspended under the TOS, and the writer’s work still belongs to the writer and can be removed (more on that later) and reposted (or not removed and reposted) anywhere else.

The important things about this sentence for our close reading are as follows: 1) the writer is using a bunch of legal jargon in a way that is irrelevant and inaccurate (the alternative, which is worse, is they are lying and they know it); 2) as a corollary, the writer is talking confidently and forcefully about the situation in ways that do not accurately describe the situation (either out of ignorance, confusion, or a deliberate desire to mislead); and 3) the writer is using charged and exaggerating language to describe the situation.

Number 1 will be important shortly; for now, just keep it in mind.

Number 2 doesn’t necessarily imply bad faith; as noted, they could be talking out of ignorance or misspeaking, or some combination of both, due to the emotionally charged situation. Even though they haven’t lost their content (because they haven’t), people’s writing is very important to them; it is understandable that someone who has lost some control over the distribution of their writing would feel upset! (Please note that this is true regardless of whether the suspension was appropriate, justified, or correct - punishments hurt, by definition!) Rather, it is important because it makes clear that even if the writer has best of intentions, the way they are writing about this situation is not entirely accurate. It is entirely possible that this is the only thing about their situation that they will be wrong about - especially since legal rights and issues are extremely complicated and most people struggle to fully understand them. However, it is still an early indication to keep our eye on, moving forward. (It is also worth noting that this kind of legal misrepresentation is extremely commonly used by people who are NOT acting in good faith. This alone is not enough to assume bad faith - again, legal issues are complicated - but it is something to keep an eye on when reading posts like this.)

Number 3 is referring mostly to the use of “kidnapped” to describe the status of their works. This is not remotely accurate, for reasons which I will dive into more later. It is, however, highly emotionally charged language that indicates a couple of possibilities, any or all of which may be present. First, it could indicate, like the last point, a writer who is (again, understandably!) upset and is expressing how the situation FEELS to them, even if that feeling doesn’t match reality. Secondly, it could be the writer trying to using metaphorical language to get the reader to understand how serious the situation feels to them. Third, it could indicate a desire (conscious or unconscious) to appeal to the reader’s emotions over their logic, so they will be more likely to go along with the writer’s characterization of the situation.

The overall impression from where we are starting is this: we have a writer who is (again, understandably) extremely upset at a suspension that may or may not be justified and appropriate - so far we have no evidence either way. We have likewise no evidence that either party is acting inappropriately. However, we do have indications that the writer appears to either not correctly understand, or is (accidentally or on purpose), mischaracterizing at least some elements of the situation.

So, let’s move on to the long post.

We start with the knowledge that we do not have AO3’s whole response; there are sections that are left out that may or may not be relevant. This isn’t necessarily bad or wrong - there may be lots of good reasons not to include the full text. However, it is worth keeping in mind when we are assessing the situation.

More important is the description of AO3’s letter as, “full of fun jargon.” We will review the provided text ourselves, but AO3 generally does an admirable job trying to use as little jargon and legalese as reasonable possible, and I would include the provided text of the response in that assessment. Still, given that is a formal response to a TOS violation appeal, it does use a lot of formal language and some legal language.

However, this is an interesting complaint for the writer to make, given Number 1 above (I promised we would come back to that!). It’s a sharp contrast for the writer to use lot of legal jargon to complain about AO3 and then turn around and promptly complain about AO3 using jargon. Again, this isn’t necessarily a sign of bad faith. It is entirely possible that the writer, as described above, is confused and upset and using language they think they understand (but don’t) to express their feelings, and since they don’t understand legal language, they see the AO3 response as including a lot of jargon. However, using charged legalistic language themselves while characterizing their opponent as using “jargon” is another flag to keep an eye on. Again, in the best case scenario, this is someone who is clearly quite (reasonably!) emotional and whose characterization of at least some aspects of the situation is questionable.

This response by the writer is….confusing?

The writer seems to be arguing that punishing them for failing to comply with the TOS makes them unable to comply with the TOS right away so therefore…people shouldn’t ever be suspended for commercial content violations? I don’t think this is what the writer is arguing, because it’s not reasonable (and in some of their posts, they make it clear that they don’t believe that), but I can’t make any other sense of this paragraph.

According to their TOS, if AO3 finds a sufficiently serious violation, it can hide or delete violating content. But based on the previous “kidnapped” comments, the writer would presumable be upset (is upset?) if the works were altered or removed from public view by AO3 unless they specifically asked them to. So I’m not sure what the writer would want AO3 to do in response to a commercial content-based TOS violation.

This first quoted paragraph is being positioned by the writer as indicating some problem with AO3’s process, either in general or in this specific case, but so far, there is no actual evidence of that.

I also want to note here – this paragraph seems to be confirming that the TOS violations were valid, and the writer is just disputing their seriousness, not their existence. But to be fair, I checked some of their other posts on the topic to confirm this reading. Although they dispute the interpretations of some of the reported violations as incorrect, they do admit that at least one of the reported violations was accurate.

We are not provided this mitigating information, but the writer will include some arguments later that would seem to be the mitigating evidence, and I will address it then. I will note here - it is very common for an aggrieved party to say that a system that punished them ignored evidence they presented. While sometimes this is true, often the system reviews the evidence they present, and decides not to rule in their favor anyway. Here, for example, we see that AO3’s response notes that the suspension will not be lifted unless the writer furnishes mitigating information “that would have changed our initial determination.” So AO3 might have ignored the mitigating information, or they might have reviewed it and determined it would not have changed their decision (e.g.: they already knew about it, it wasn’t determined credible, it wasn’t determined relevant, etc.). Also note that we, seeing the mitigating information, could think that AO3 was incorrect if they reviewed the proffered mitigating info and did not rescind the suspension, but that is not the same as AO3 ignoring it. We, as readers of the post, don’t know which of these options occurred - and neither does the writer. While it is understandable that the poster is not giving AO3 the same kind of good faith that we are trying to give them (aggrieved parties don’t have to assign good faith to people they believe have wronged them!), it once again colors our understanding of how the writer is characterizing AO3’s response.

This starts with an interesting claim! That is, that AO3 acknowledged in the letter that the writer has “a history of immediately complying.” This isn’t in the excerpt of the letter that we have. Because this claim is immediately below the above excerpt from AO3's letter, it appears that the writer is misconstruing the statement, “While we appreciate your willingness to remove the violating content immediately, you must first serve your suspension to its completion before you are able to edit your works.” This sentence isn’t claiming the writer has a history of complying, it is clearly responding to the writer’s stated willingness *in this case* to edit their content to comply. If the writer is deliberately misconstruing the letter this way, that’s deeply troubling, because it shows they are both trying to make AO3 look bad (see the rest of the paragraph) and twisting their own bad behavior (note that they here acknowledge past instances of breaking the TOS) in a way that makes them look good, actually (“assist[ing] the Archive in keeping things to their TOS standard”). This is really, really, bad behavior if it is deliberate. It would be a deliberate lie to preempt their audience’s recognition of their misdeeds and frame themself as a victim of a malicious actor.

HOWEVER. That is not the only interpretation of this claim. The writer is not necessarily deliberately misconstruing the letter - again, they are reasonably upset at the situation, they’ve stated they have found the letter to be full of jargon (and thus potentially may be struggling to parse some of it), and it is possible they are responding quickly without carefully reading the letter. Alternatively, they have stated that they are only posting certain sections of the letter - it is entirely possible that AO3 acknowledges “a history of immediately complying” somewhere else in the letter. Now, even in that case, the writer is clearly attempting to reframe evidence of their past violations as evidence of their victimhood (promptly removing TOS violating content is the bare minimum of what should be expected by an AO3 user). Again, that may be a genuine (and natural!) emotional reaction, but we continue to see the thread that the writer’s characterization of (now multiple) aspects of the situation are both inaccurate and biased to see themselves as victimized.

Which leads us to the poster’s response to the next excerpt.

Here the writer acknowledges again that they have at least one previous TOS violation. They include an except from AO3’s letter that clearly shows that they were explicitly told that failing to remove commercial promotion material from their account might result in a temporary suspension. Noticeably, although they have and will continue to frame themselves as the victim of an unfair process: 1) they do not dispute they were previously in violation of the policy, and were let off with just a warning. 2) They do not dispute that since that warning, they continued to have commercial promotion material on their account. 3) They do not dispute the content of the warning. 4) They do not dispute that they received or understood this warning.

Instead, the poster disputes that the warning…wasn’t official enough? They do not indicate how or what AO3 should have done to make it “official” - likely because it is extremely clear that this was a previous warning, and spelling out an alternative would make the absurdity of this complaint clear. It is at this point that we can no longer proceed assuming that the poster is writing solely in good faith. While we cannot assume they are deliberately trying to mislead their audience or that they do not have legitimate complaints, they are at least deeply in denial and stuck in a victimization perspective and that must inform our reading of their post.

Their second complaint with this section is just as ridiculous and telling as their first. AO3’s abuse policy is NOT a 3 strikes policy, as it is explicitly designed for flexibility, so that an account may be let off with multiple warnings, or may be suspended at the first violation, depending on the assessed severity of the violation. Nothing in the quoted section of the letter contradicts this flexibility. In fact, it directly supports the existence of this flexibility, by writing that further TOS violations “might,” not “will,” trigger a suspension. The writer is just wrong, and we can see they are wrong by simply reading the text they are replying to. This can only be read as either a deliberate mischaracterization of both the letter and the TOS, or as someone so far in denial that their characterization of the situation cannot be relied upon and no information they give can be fully trusted without external supporting evidence.

(As a note on my own biases in writing this analysis: this is where I personally ran out of patience with the writer, although I have tried to maintain a more even tone in this analysis.)

The writer may still have legitimate critiques of AO3’s actions and response (for example, they can still argue that such a flexible system is bad in general, or that there were mitigating circumstances that should have caused the suspension to be lifted/not imposed in their particular case), but they are not, in this section at least, making such a legitimate argument.

Their critique of the non time-limited nature of AO3’s response to TOS violations also indicates a fundamental misunderstanding (whether genuine or deliberate) of the *problem* of a TOS violation, especially of a commercial promotion TOS violation. AO3 is an *archive* - it explicitly exists to preserve fan works and provide access to them. It doesn’t matter, from AO3’s perspective, when a commercial promotion is first posted - it matters that it is currently accessible. A commercial promotion violation does not occur solely when a user posts it - it is an ongoing violation that continues to occur for as long as the promotion remains accessible. Furthermore, the structure of AO3 is such that it relies on individual users to maintain their works in compliance with the TOS. We can imagine an archive that works differently. This hypothetical archive could have works reviewed by archive staff before being accepted into entry in the archive, would not allow works to be modified except with the approval of staff, and would allow works to be modified by staff without the users’ knowledge or consent. However, 1) this is not the TOS the writer agreed to when they posted their works on AO3 and 2) given this writer’s expressed desire for control over their own work in this very post, this would not be an archive the writer would want to use.

People can still have legitimate disagreements about whether and how the date that a violation was originally posted on should affect sanctions for that violation, and disagreements over whether the sanctions were appropriately applied in any particular case. It isn't a problem for the author to assert that they think AO3's policy should be different. It is a problem for them to mischaracterize what the policy is and mislead their audience about why a policy exists.

Once again, AO3 is describing a policy that is entirely reasonable. However, in this section the writer finally moves on to the potentially legitimate claim that the policy is being enforced in a draconian way. They advance two arguments to support this claim.

This is actually one of their better responses, because their arguments, while very hostile, are potentially legitimate complaints that support their claim of draconian enforcement in their case! (Please note I am not asserting their complaints are accurate, however - more on that in a moment.)

The first claim is that an official AO3 staff member previously checked every one of their existing fics to try to ensure that they did not violate AO3’s TOS. The writer relied on this assurance going forward, so should not be sanctioned with a suspension. This is a part of the post that, in the interests of good faith, I will discuss with the added context of another post by this writer, since the claim isn't fully or clearly expressed in the above post, and it is their best argument in favor of their mistreatment. I am also going to assume that this was the mitigation that they referred to submitting to AO3 and claim was ignored.

If the poster is characterizing this previous interaction correctly, they have legitimate reasons to be upset, and I would agree with them that this is the sort of mitigating evidence I would expect would cause a suspension to be lifted if I was the person making decisions.

…here’s the problem, though. While I would agree with them that this would be a draconian application of AO3’s polices…it wouldn’t be a violation of AO3’s stated policies in any way. If the AO3 abuse staff member made assurances that to the writer that all their posted content was clear of TOS violations, that would be counter to AO3's TOS, which makes it clear that it does not do pre-emptive reviews. It would be legitimately frustrating for this writer to find out that the promise it relied on was incorrect and be punished after relying on it. However, it is impossible for me not to see that from AO3’s perspective, if this staff member really did give this assurance, it means that the writer was given an assurance of preferential treatment over other users. There is a good argument that to continue to give them preferential treatment (that is, to rescind the suspension based on the preferential treatment) would only compound the harm. It’s a legitimately tough situation for both parties to be in. I ultimately continue to see no misconduct on the part of AO3, except potentially in allowing an official staff member to give misleading preferential treatment (I say potentially because we have no further information about what actions AO3 took to correct this harm/punish the staff member), and also understand why the writer is reasonably furious at the archive.

…or rather, that would be the problem, if we could continue to read this post solely in good faith. Unfortunately, by the time we reach this explanation, as stated above, we know that the writer is either deliberately lying in this post, or deeply in denial leading to them mischaracterization the situation. Because of what we have already seen, we cannot take their description of the alleged staff member or their actions as accurate without at least some external supporting evidence.

We are given no such evidence, either in this post or in any of the others I have reviewed. Rather, the provided evidence contradicts it, albeit subtly. Remember that we noted how the poster did not dispute the content of the August 2019 warning AO3 sent them? That warning clearly stated that failing to remove all commercial promotion from their account might result in a suspension. That warning, from AO3 (not a single independent staff member), along with the clear TOS statement that it does not do preemptive reviews, puts the responsibility for removing the violating content squarely on the writer. If that warning wasn’t “official” enough for them to take it seriously…why were they willing to rely on the word of a single person who was breaking AO3 official policy by purporting to prescreen content?

While I lost my patience at the previous paragraph, as noted above, this response is why I actually decided to write and post this analysis. Casually reading this post, the writer’s description of events here sound deeply sympathetic and would lead a casual reader to see them a victim and AO3 as a villain. It is natural (and a good instinct!) to trust people when they tell you they are being mistreated. Unfortunately, sometimes people who feel that they have been mistreated are just seeing the consequences of their own actions catch up to them.

The second potential legitimate complaint is the implied assertion that their violation was not really serious, and should not really be considered a TOS violation (“figurative, imaginative caffeine.”) Unfortunately, the writer has already admitted repeatedly, both in this post and outside of it, that they were in violation of the TOS. Thus, instead of this being a legitimate complaint, it is another indication that the poster is inappropriately mischaracterizing themself to their audience as a maligned victim and AO3 as a villain.

Oh hey, AO3’s letter is reiterating everything I just explained about prescreening! I wonder how the poster will respond.

I’m trying not to be too snarky here, but that is a really damming failure to respond.

So instead of talking about the substantive issue at hand, let’s address this wild change of subject, I guess.

This is again an instance of the writer portraying themselves as a victim, either because they are deliberately trying to maliciously mislead their audience or because they truly believe it. Just to be clear - they are claiming that they are being targeted because someone noticed and reported admitted TOS violations on their “two…most well-know fics in two major fandoms.” If they are claiming they are being targeted by someone acting in bad faith, and therefore the (again, admittedly legitimate!) violation reports are a form of targeted harassment, wouldn’t they have a much better claim if the violations were reported on fics with very low hit counts (so that someone would be less likely to randomly find them)?

And a side note - if these TOS violations were on the poster’s “most well-known fics” in “major fandoms,” that goes directly to the relevance of their ‘the violations were posted a long time ago’ mitigation claim. A well-known fic is more likely to be currently receiving continuing views (remember, the harm the violations are causing is based on people seeing them), and an author who is continuing to get hits/kudos/comments on that work would presumably be aware of its continued popularity, and thus should be aware of the need, after receiving a warning, to make sure to personally review it for violations.

Again, we’ve already addressed this issue repeatedly. So I will just note here that the writer is claiming that it is “actually fucking ridiculous” not to grandfather in active TOS violations. Imagine making this argument in any other context. Imagine an author has a book that they wrote 14 years ago but is still selling. Imagine someone notices this year, for the first time, that the author has extensively plagiarized copyrighted material. They alert the victim, who brings a suit, and the publisher stops publishing the author’s book and refuses to publish any of their other book as well. Does the writer think it is “actually fucking ridiculous” for the publisher to cease publishing the author, simply because the author was able to avoid detection for so long?

(Since I’m not doing much analysis here, let’s talk instead about what the purpose of this portion of the poster’s response might be. I’m putting this as an aside, because this isn’t strictly part of the close reading, and it is absolutely not it the spirit of good faith I am still trying to use. We’re going to look at the effect of this section in context. Let’s start by analyzing the use of the term “you” in this post. When the post began, the writer used “you” to refer to themself (“no matter how willing you are to fix it…etc.”). In the same section, the writer switches to using “you” to refer to AO3 (“if you have fans…”). In the third section, they start by using “you” to refer to AO3 (“You guys are the ones…”) and then switches in the next sentence to directly address the readers (“if any of you following me”). This switch isn’t a casual fluid switch like it was previously - instead, it is positioned in a sentence directly warning the readers that AO3 might come after them next. In the following section, they don’t use the second person, but they do imply (nonsensically) that someone is targeting them with these TOS violation reports. We then catch up with the above section - “they can and will go after you.” Note that the post starts directly addressing the reader at the same time that it builds up an escalating threat. This creates a sense of fear and camaraderie with the writer, positioning reader and writer as “us” against a malicious “them” who is not just targeting the writer, but the readers as well. This makes the reader more sympathetic to the writer, and more likely to believe their claims; after all, “you” know you’re not breaking AO3's TOS, and if “you” did, it would be an accident. How ridiculous for AO3 come after someone like “you” - someone who has broken the TOS multiple times in the past in the same way and has explicitly…been…warned…hmmm…how much like “you” is the poster, actually?)

Anyway,

I’m going to reiterate what I said after the writer’s response to the previous warning letter: what should AO3 have written to make this a warning that the writer would accept as legitimate? This is a bit longer and more detailed, but substantially the same as what was reportedly written in the previous letter. In that context, the poster said it didn’t look like an official warning, it wasn’t clear or serious enough. In this context, substantially the same content in substantially the same tone is recontextualized as too serious, a threat that secretly means AO3 already plans on banning them permanently. To borrow a phrase…"this is actually fucking ridiculous."

Again, if we are reading the post in the best possible light, this is someone who is so emotionally distraught that they have descended into paranoia and are unable to correctly characterize the situation. Alternatively, this reads like someone who deliberately characterizing AO3’s responses to best achieve their own ends. They want this suspension to appear unjustified and unjustifiable, which means they can’t have received clear previous warnings for the same TOS violations they are suspended for - so there was only one warning that wasn’t clear or official enough to give them any real notice. Now, they want to appear as a victim who is being targeted by a system that has it out for them, no matter what they do - so substantially the same warning is a threat that indicates an intent to ban them regardless of what they do next.

And we are back to the beginning: not understanding the first thing about the law and using (at this point I feel safe in saying) deliberately charged language to describe the situation.

(And mischaracterizing the text that is LITERALLY RIGHT IN FRONT OF THEM – AO3 isn’t saying it will take a week to respond! It is giving you a week to comply once your suspension is lifted! What do you want it to do, impose further sections if you don’t comply within 12 hours?!?! I mean, if that’s what you’re asking for...)

AO3 is not taking control of the writer’s works. It has control how it chooses to display and store works that the writer has granted it permission to display and store. This is all very clearly laid out in the TOS.

We’ve already addressed that the writer does NOT know that AO3 did not investigate their alleged mitigation evidence. The writer is once again positioning a failure to agree with their position that the suspension should be lifted as a failure by AO3 to read or consider their evidence.

I’m not going to address most of the specifics they list, because I would basically just be repeating myself over and over again with more details and this analysis is already long enough. These specifics might be important, except that the poster has already admitted that they did violate the TOS. Even assuming they are characterizing their email, AO3’s full response, and the “Not Actually Violations” correctly, it doesn’t matter for the purpose of whether they violated the TOS (again) and received a legitimate suspension.

The only specific I will address is their blatant lie at the end: the TOS specifically bans all commercial promotion, NOT just self-promotion. The writer is explicitly, obviously lying - not just misunderstanding, not just mischaracterizing, flat out lying.

We have something in common, finally - I’m really offended too.

So I looked at some other posts for more context about this comment on deleting a work, just to make sure I wasn’t mischaracterizing: the writer apparently, fed up with AO3, wants to delete their works prior to the end of their suspension. Their “inability” to do so appears to be a major basis for their “kidnapping” claims above. This, once again, might be a legitimate complaint - AO3’s TOS does confirm that a suspended user retains the rights to remove their work (subject to certain data storage exceptions to meet AO3’s obligations).

Unfortunately, the poster’s next sentence makes it clear this compliant is not legitimate. The TOS are explicit that the way a suspended user can delete their works is through contacting AO3 administrators. If the poster had requested such delegations and been refused, AO3 would have violated their own TOS. Instead, the user states they just asked AO3 to lift the suspension. There is zero evidence that they asked AO3 to delete their works, and instead are mischaracterizing AO3’s refusal to lift their suspension as a refusal to delete their works, both in this post and elsewhere. I feel like a broken record at this point, but once again, they are mischaracterizing a very clear situation to make themselves look like a victim and AO3 a villain.

An appropriate gif of a petulant, spoiled child to match this closing paragraph. I don’t think I need to say anything else.

#AO3 drama #little tin cults #edited to add a read more #apologies to everyone who reblogged it before that #edited to fix the typo in the second paragraph that I can't believe I never noticed before

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carriesthewind · 1 year

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*Sigh.*

So Flamethrower, the writer I have previously discussed in these analyses, has apparently decided to escalate her claims against the OTW, and also to explicitly threaten legal action against other individuals who have made accusations about her behavior.* This is very funny, in large part because, as I noted previously, she appears to have a habit of sprinkling her writing with legal terms and pseudo-legalese without actually understanding it. Her threats to pursue legal action are hilarious in their obnoxious mix of unearned confidence, self-righteous victimhood, and legal incompetence. We are going to go through her letter and point and laugh, and then we are going to get serious and discuss what purpose posting this letter actually serves.

*She does not name these individuals or identify their “accusations” in her letter, but based on the context it appears she is referring to individuals who documented her violations of AO3’s terms of service, accused her of racism and antisemitism, and (probably primarily) the individual who accused her of serious interpersonal abuse, as well as other individuals who have backed up those allegations and made further allegations of misconduct and abusive behavior.

(Please note: I am going to be discussing a number of legal issues while analyzing this letter. Nothing in this post is intended to be or should be construed as legal advice. Furthermore, I do not have specific expertise in Florida law - if someone who is more familiar with practicing in that state wants to chime in, I would be happy to make additions to this post.)

Always nice to start out with a grammatically incorrect salutation.

“I will be speaking to my lawyer” translates to, “I have not spoken to a lawyer.” It is generally a good idea, if you are going to make legal threats, especially legal threats against an organization with a vigorous legal department, ESPECIALLY if you then post those legal threats publicly, to speak to a lawyer before sending/posting anything.

In addition, “my lawyer” is interesting phrasing here. Generally, if you are referring to “my lawyer,” you are referring to a lawyer you have already retained (i.e. paid or promised to pay). If she has indeed already retained a lawyer, 1) it would seem to indicate she has significant funds available, 2) she has hired a scammer or a fool who thinks they can successfully get money out of the OTW, or 3) she has hired a biased friend who is working for free or a discount. And 4), either her attorney has foolishly given her the go ahead to both send this letter and post it publicly (which does not say much for that lawyer’s competence), or she is already working to undermine her attorney, possibly explicitly against that attorney’s advice. Alternatively, she’s deliberately misrepresenting the situation to make it seem like she has already found an attorney to pursue her cases when in fact she has not.

Now, in her second sentence, Flamethrower throws out some legal terms (slander, libel, and harassment) which she appears to be positioning as her legal claims against the OTW. The way she uses those terms, however, in both this sentence and throughout the letter, are going to require some unpacking.

First, there is no reason to separate libel and slander in this letter. They are two different forms of defamation, and while distinguishing which (or both) she is asserting would be important when filing a complaint,* there is no reason to not just say “defamation” here. It seems to indicate a mindset of “more legal words = good.”

*Since she at no point gives details as to what claims published or republished by the OTW are actually allegedly defamatory, it is possible that at some future date she could claim that some person she wants to sue expressed defamation verbally, as well as claiming they published defamatory claims on Fanlore.

Second, we need to talk about the ostensible purpose of sending a letter like this. Being extremely generous, we can call this an attempt by Flamethrower at a pre-litigation demand letter.* As part of a demand letter, a potential plaintiff generally needs to be able articulate the legal basis for the lawsuit or legal claim clearly enough to be actually claiming some potential cause of action** and demanding certain remedial action by the recipient.

*To quote from Cornell’s Legal Information Institute, “A demand letter is a letter, usually written by an attorney on a client’s behalf, outlining the dispute between the two opposing parties and demanding that the recipient of the letter take or cease a certain action…Demand letters usually state the harm the client has suffered, the relief they request and may threaten the sender’s intent to accelerate the dispute via a lawsuit if the recipient does not respond according.”

**In order to sue someone, you need to have a thing called a “cause of action.” A cause of action is, to quote again from Cornell’s LII, “a set of predefined factual elements that allow for a legal remedy.” What does that mean? It means to pursue a civil lawsuit, you need two things: (1) you need to be able to show that certain facts exist, and (2) that the law provides you with a legal remedy (damages, injunctive relief, etc.) if those facts exist.

So here, Flamethrower appears to be articulating that she plans to pursue (or, well, plans to discuss maybe potentially pursuing) two causes of action against the OTW - defamation and harassment.

But here’s the problem. Because of the way the legal system works in the USA, causes of action vary from state to state. If you want to sue someone for a particular cause of action in a particular state, first you need to make sure that the thing you are claiming the potential defendant did is actually something you can sue them for in the state you are suing. Flamethrower, by her own account, lives in Florida, and plans (or is claiming to plan) to file her legal action in Florida.* And while a claim of defamation is a cause of action in Florida, “harassment,” generally, is not. You can’t sue someone for “harassment” in Florida.**

*I am not going to address any of the potential issues with jurisdiction, venue, or choice of law that would certainly arise should the writer actually attempt to file a lawsuit against the OTW, given the specific provisions regarding those issues in the OTW's ToS. While these things would be extremely relevant to the viability and process of any actual lawsuit, this isn’t a serious legal threat, so analyzing them would be a pointless and boring diversion. I only mention them to highlight how non-serious this legal “threat” is.

**Generally speaking, if you want to scare someone with a bullshit threat full of pseudo-legalese, you will get further if you google “can I sue someone for “X” in “state” first, or you might end up embarrassing yourself.

Now that said, while Flamethrower clearly, just based on these first two sentences, has no idea what she’s talking about, we are going to be extremely generous. While you can’t sue someone for “harassment” in Florida, you can sue for Intentional Infliction of Emotional Distress (IIED), and it is possible that the “outrageous conduct” underlying an IIED claim could include harassment. We will give her the massive benefit of the doubt and assume that when she is threatening to sue the OTW for harassment, she actually means she is threatening to sue them for IIED.

So, let’s see if she articulates what OTW has done that may constitute defamation or IIED. If she does, we can analyze the elements of those claims to see if she might have a viable cause of action against the OTW.

*SIGH*

(And just to be clear before we proceed - I am not cutting anything out. There is more to her letter below these paragraphs, but these two paragraphs are the full sum and substance of her claims against the OTW as articulated in this letter.)

We are going to start by breezing right by the truly incredible phrase, “harboring a Fanlore page,” other than to note again the inappropriate use of a pseudo-legal term for no other apparent reason than to try to boost her credibility and make the letter sound more “legal,” as well as the inappropriate use of “slander” to refer to a written wiki page. Instead, we are just going to see if there is anything in here to support a claim of defamation or of IIED. We are also going to be extremely generous in our analysis, and not require that she show, at this stage, some evidence of every element (e.g. I’m going to ignore the complete lack of claim of any damages due to any conduct by the OTW (or by anyone else), which would be an essential element to both these claims).

Flamethrower’s entire claim in this letter against OTW is that they have included, in a wiki page about Flamethrower, “allegations” and “falsehoods.” Unfortunately for us, Flamethrower fails to specifically identify any false claims on her Fanlore page. This is fatal both to her claim insofar as this letter is concerned and to our ability to analyze the viability of her planned litigation (or rather, the plan she might make after actually talking to a lawyer). Instead, since I am not going to go through the elements of defamation for every sentence on her page, I’m just going to describe the elements of defamation and then talk about her Fanlore page in broad terms. Should she actually give specifics for her claim at a later date, I will review her allegations at that point.

Broadly speaking, a defamation claim contains five elements: (1) a false statement purporting to be factual, (2) about the plaintiff, (3) communicated to a third party, (4) negligence in stating (or repeating or republishing) the fact, and (5) some damage or harm done as a result of the false statement. (This can be complicated in various ways and can vary from state to state, and the mens rea is different if the plaintiff is a public figure. But we are keeping this VERY basic for the purposes of this analysis.) As I already stated, we are going to ignore her failure to state any damages, and there is no debate that the information on the page is about Flamethrower and communicated to third parties.

So then, is any of her Fanlore page potentially false statements purporting to be factual? And if so, was OTW negligent in publishing (or republishing) them? Well, again, I’m not going to go through every single line of the page. But looking at the page as a whole, it seems like there would be serious problems with any attempt to claim defamation. First, many (if not most) of the statements on the page are clearly opinions. E.g., when the page refers to “the use of antisemitic jokes in Flamethrower's Harry Potter series "Of a Linear Circle”,” the question of whether the jokes were antisemitic is, legally speaking, a matter of opinion. Second, when the page makes factual claims (e.g. stating that Flamethrower said a quote or took an action), it generally links to clear evidence supporting that claim. Finally, while the page does contain a number of unsupported claims by mostly anonymous or pseudonymous individuals, these are either clearly marked as allegations or are contained in a section entitled “Reaction from other fans.” In order to try to use those claims to support a defamation suit against the OTW, Flamethrower would have to argue that those clearly marked allegations and reactions were published in such a way that the OTW was actually presenting them as factual (and that they were, in fact, false).

Furthermore, it’s worth noting here that while Flamethrower complains about the fact that her page is admin-locked, a review of the history of the page shows it was locked in order to *protect* Flamethrower, potentially cutting against any argument of negligence on the part of the OTW *even if* the page contains false factual statements.

That is to say, she included evidence that appears to undermine her own claim in her letter for absolutely no reason (no legal cause of action is created if a user-edited wiki admin-locks a page to protect the subject of that page).

Before we move on, let’s take a quick look at IIED. There are four elements of IIED in Florida: (1) whether a defendant engaged in “extreme and outrageous conduct,” (2) either intending to cause severe emotional distress or with reckless disregard for the high probability of causing severe emotional distress, (3) the plaintiff experienced severe emotional distress, and (4) the extreme and outrageous conduct was a legal cause of the severe emotional distress. Under Florida law, “extreme and outrageous conduct,” to quote the Florida Bar’s civil jury instructions, “is behavior, which, under the circumstances, goes beyond all possible bounds of decency and is regarded as shocking, atrocious, and utterly intolerable in a civilized community.” While again, harassment might rise to this level of conduct, Flamethrower has utterly failed to allege any actual instances of harassment (or any other specific action) committed by the OTW (or by anyone else) that appear to rise to this level. Furthermore, once again, her own inclusion of the fact that her page is admin-locked would undermine her claim, since locking the page to prevent it from “veer[ing] into attack page territory” cuts directly against the necessary mens rea for an IIED claim. And again, while I’m going to be generous and ignore the fact that for now, she failed to state her actual damages, I will note for the benefit of those reading along that “severe emotional distress” isn’t just feeling bad; to quote again from the Florida Bar’s civil jury instructions, it is emotional distress that is so severe that “it is of such intensity or duration that no ordinary person should be expected to endure it.”

The first thing Flamethrower should discuss with her lawyer is whether or not she actually has a potentially viable case, before she thinks about sending additional letters.

Also, at no point does she say what she wants the OTW to actually Cease and Desist *doing*. Presumably she will say so in her Cease and Desist letter (should one actually be sent), but then what is the point of this letter? All she says is that the OTW “willing participated in a harassment campaign” but as we went through above, she doesn’t say why or how, other than having a page that includes reports of (some of) the allegations against her.

But here we come to the second attempt at a legal threat in this letter - not only is she threatening to sue the OTW, she is threatening to report the OTW for criminal harassment. Now, she is correct that harassment is a crime in Florida. Its definition and punishment is contained within Florida’s more general stalking charge (Fla. Stat. § 784.048). So let’s look at the relevant sections from that statute.

(Section (1)(c) is about threats and isn’t relevant here, as no threats against Flamethrower are contained in the OTW page or alleged to have occurred at any point.)

Does anything Flamethrower accuses the OTW of doing rise to the level of Harassment or Cyberstalking as used in this statute? NO! Clearly not! I could break down all the elements in detail, but the most important thing is that the course of conduct and/or communication that is alleged to be harassment must serve “no legitimate purpose.” Documenting allegations against Flamethrower and the reactions by the community may not serve a purpose that Flamethrower likes or agrees with, but they serve a legally legitimate purpose. In addition, while I can’t speak to whether any individual prosecutor’s offices in Florida may choose to “prosecute out of state offenders regarding this violation of the law,” that’s not really the relevant issue here? Because private citizens like Flamethrower are free to *report* what she believes to be a harassment crime to the authorities, but she cannot make them prosecute such an offense. Ultimately, even if she attempts to report the OTW for harassment for, again, keeping a wiki page documenting allegations against her and reactions by fans to those allegations, it will be up to the state to decide whether to pursue a case.*

(*Some states do allow individuals to file criminal complaints, but the prosecutor’s office will almost always still review those complaints and will be responsible for deciding whether to pursue or drop those cases. Regardless, Florida is not such a state and only the State may file criminal charges in Florida.)

That’s not the way any of this works! While a corporation can be charged with crimes, you can’t get an injunction for protective relief against a corporation the same way you can against an individual for things like harassment. Instead, if you bring a civil suit, you can request a temporary restraining order during the pendency of the suit, and can request injunctive relief if you win the civil case. So even if she were to seek (not deliver - you need to seek an injunction and have it granted before you can get it delivered) an injunction against the OTW, it would not be the first step toward anything; it would be several steps after filing a lawsuit. And again, Flamethrower cannot “fil[e] criminal harassment charges” against the OTW; only the State can file such charges.

Now, there is something else going on in this paragraph, and another kind of injunctive relief Flamethrower may be referring to seeking, not against the OTW, but against those other unnamed “participating harassment [sic] parties.” But we will set that aside for the moment and come back to it later.

Flamethrower has included her name in the sign-off of her publicly posted letter, but in the interests of avoiding bad-faith accusations of sharing her personal information, I will not include it here. Rather, I want to end this section by pointing out that although she says she hopes “this matter can otherwise be resolved swiftly,” she doesn’t provide any request or demand to the OTW that would indicate how it could be resolved! I called this a pre-litigation demand letter, but such a letter (1) needs to state a claim or harm, which as we’ve discussed, she doesn’t, and (2) needs to demand some action, and Flamethrower doesn’t do that anywhere in this letter! She doesn’t even ask the OTW to remove or hide her Fanlore page! This isn’t really a demand letter, because it’s not demanding any action. The OTW couldn’t respond to her request to “resolve” the matter even if they wanted to, because she doesn’t request anything!

So now that we have pointed and laughed, let’s get serious and look at what purposes this letter could *actually* be serving. Although it is ostensibly written to the OTW, as discussed, it doesn’t demand any action from the OTW or point to any specific thing the OTW allegedly did; it just expresses anger that the OTW republished unspecified “allegations” and “accusations” that were allegedly part of a “group-led harassment” campaign. And Flamethrower didn’t just send this letter to the OTW; she published it publicly, on her blog. While I cannot know what is in Flamethrower’s mind, we can make some reasonable guesses as to the letter’s real purposes, based on its content and context.

The actual purpose of posting a letter like this is twofold, with two different audiences. One audience is her current True Believers, followers, and friends. The other audience is those other unnamed “participating harassment [sic] parties” we set aside earlier.

The purpose at letter like this serves to her current followers and friends is to reinforce both her victimhood and her authority. While her misuse of legal terms and pseudo-legalese is hilarious to anyone with minimal legal knowledge and is reading the letter with any degree of skepticism, for people who are already inclined to believe or trust her because she is their friend or they are a fan of her work, the use of these terms can make her seem more authoritative. Legal rights and issues are complicated, frequently obtuse, and many, if not most, people don’t fully understand them. People who use legal language confidently (even if they do not do so correctly) can use it to gain a veneer of intelligence* and expertise.

*Please note: I am only noting the assumed cultural connection between intelligence and use of legal language, not endorsing this assumption; the ability to understand legal language and concepts is not related to intelligence in any way.

Furthermore, by asserting to her followers that she will (or already has) contacted legal counsel, and that her complaints about the OTW and her other accusers rise to the level of civil and criminal liability, she is creating the impression that her complaints must be very serious and very real. This is a very common phenomenon: consider, if you read a headline stating “Celebrity X claims Y National Newspaper is lying about them,” vs a headline claiming, “Celebrity X prepares to sue Y National Newspaper for libel,” the later headline makes it seem like Celebrity X has a much stronger and more serious claim against Y National Newspaper, more like Celebrity X has been wronged in some way.

And her followers are demonstrably receiving the impression she is trying to send. For example, see this comment on her post of the letter:

In a separate posts, the same commenter repeats that the (still unspecified) accusations are “libelous,” quotes a definition of libel that they think is the “legal definition” but which merely defines libel as a form of defamation without defining or giving the elements of defamation, and says that they would personally be “happy to testify” (without apparently having any sense of what they could possibly be testifying about). By bringing the threat of legal action into the conversation, Flamethrower has successfully created the impression that the OTW/her accusers have committed some legally actionable offense against her.

The second purpose this letter serves is to attempt to threaten and intimidate the other audience for this letter, those unnamed “participating harassment [sic] parties.” These “parties” would appear to be, as previously indicated, the people who have, are, or are considering making allegations about the writer. The threat to these individuals in the letter is clear from the letter, despite the fact that it is ostensibly addressed to the OTW, not only because Flamethrower repeatedly brings up that she believes this is “a hate campaign” by her accusers, but because of the specific kind of legal action she is threatening. To repeat the relevant paragraph in her letter:

As stated above, you can’t get an injunction for protective relief against a corporation for things like harassment. However, Florida law does allow an individual to apply for an “injunction for protection against stalking,” which would include cyberstalking (Fla. Stat. § 784.0485). With that knowledge in mind, it appears that the only actual legal threat in this letter is, ironically, a threat to harass her accusers with baseless petitions for protective orders.

And again, her followers and friends received the message loud and clear. Flamethrower reblogged a post from the same commenter whose post I mentioned above, which names one of Flamethrower’s accusers (@jabberwockypie) in the post and tells her to “Get a lawyer.”

Now, on the one hand, this is very funny. Based on this letter and all publicly available evidence, Flamethrower has no viable grounds for an injunction for protection against any of her accusers. Among other considerations, even if some of her accusers are lying about her, “injunctions are not available to stop someone from uttering insults or falsehoods.” Logue v. Book, 297 So. 3d 605, 614 (Fla. Dist. Ct. App. 2020).*

*(Also, if I may offer Flamethrower some personal advice, I would recommend that she discuss with her attorney the possibility that, should she proceed with filing litigation, those individuals may in turn file malicious prosecution claims against her once they defeat her facially frivolous claims. Again, this isn’t legal advice, but if I were thinking about filing malicious and baseless legal claims, especially when I have published a letter online admitting that the purpose of initiating such litigation would be to force my accusers to personally come to my state to appear in court, I would want to consult with a qualified attorney to get legal advice on this point.)

On the other hand, this is a despicable threat designed to frighten and intimidate people who allege they have been harmed by her into silence. Even in the unlikely scenario that Flamethrower manages to convince a lawyer to attempt to initiate litigation against the OTW, the OTW will be fine. The OTW has money and resources and legal counsel and will chew her up in court and destroy her without so much as a blip. However, if she files petitions for injunctions for protection against her accusers, even if those petitions are baseless, those accusers would have find a way to appear in court and find the resources for legal counsel themselves. Indeed, based on the above quoted paragraph, forcing her accusers to travel to Florida to appear in court would appear to be her main goal in filing such a petition.

In short, Flamethrower is attempting to bully her accusers with threats to file meritless legal claims against them, specifically so that those accusers will have to spend the money and resources to travel in person to Florida to fight those claims. Even if she does not actual file a petition, she will have achieved her purpose if she can make her accusers (or other potential accusers) fear such a petition may be filed, causing them anxiety and possibly chilling their speech.

She is using the threat of the legal system to attempt to bully people who have spoken out against her. It is, on a much smaller and clumsier scale, an attempt at the same kind of behavior we see with powerful figures like Harvey Weinstein who threaten to sue any accusers, and any paper who reports on those accusers, into silence.

And - by the way. If she does follow through on her threat to attempt to file baseless injunctions for protection (or any other civil suits) against individuals in order to harass and bully them, I will be happy to boost fundraising links and provide other assistance to those individuals as necessary, and I am sure many other people will be as well, to make it clear that our community will not stand for such behavior. Because despite what Flamethrower asserts, I believe that the fan community does despise vindictive bullying - it’s just that we recognize that she is the bully, not the victim.

#ao3 drama #little tin cults

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