A Toronto man was released from prison last month after a judge ruled that rap lyrics and provocative social media posts were not enough to justify first-degree murder.

Hassan Ali, known in the Toronto music scene as Top 5, was accused of being present at the scene of a shooting that killed 20-year-old accounting student Hashim Hashi, who prosecutors described as a “innocent” victim.

In addition to incidental costsProsecutors argued that Ali’s violent lyrics and online posts were more than just works of art, saying they established a connection to the “GGG” gang. In one viral video cliprecorded from prison with a contraband cell phone, Ali rapped: “I was 18 when I bought a gun, 22 when I shot your son.” »

This is far from the first time that rap lyrics or artistic expression have been brought up in court, according to a criminal lawyer. Alex De Boyrie said.

“A common example used in court is Bob Marley’s song ‘I Shot the Sheriff,'” De Boyrie explained, adding that no one seriously believes the reggae legend committed such an act. “It’s just a common form of artistic expression,” he said. “Just because an artist or rapper may be less well known than Marley, why should his words be taken as fact?”

The judge in Ali’s case ruled that the charges against him would be “stayed” for a year and that Ali’s profession as a drill artist was inadmissible in court. Since his release, however, Ali has maintained his controversial online presence, appearing on live streams and podcasts, which has raised questions about the free speech of artists who blur the line between culture, art and the law.

So what does this case mean for artists who use controversial language in their work? Here’s what legal experts say you can and can’t say online.

Fact or fiction: people often “embellish their stories” to “make them go viral”

When it comes to online expression, the line between fact and fiction can be blurred, especially in cases where song lyrics or social media posts end up being used as evidence in court .

In the United States, Atlanta-based rapper Young Thug is currently facing charges – in the longest criminal trial ever in the state of Georgia. accused of being the “leader” of a street gang known as YSL (Young Slime Life). Prosecutors emphasized his rap lyrics as proofdespite his lawyer, Brian Steel, claiming that “none of these words constitute actual threats, so it is protected speech.”

The boundaries of protected speech differ depending on context and jurisdiction.

De Boyrie says that in many cases, public figures exaggerate or fabricate narratives online to build their brand. “I think, as with any type of statement, there has to be a factual basis behind it,” he said. “Whether they are artists, rappers, or streamers, they often embellish stories to gain credibility or go viral.”

According to De Boyrie, when evidence such as song lyrics or social media posts is presented, courts must examine its reliability. In Ali’s case, he explains, “admissibility often depends on reliability” because juries cannot take at face value what artists claim online.

As artists increasingly use bold content to cultivate an image on the Internet, it raises the question of the extent to which that image can be used as evidence against them.

Free speech laws have limits

Individuals are generally protected by free speech laws, but this right has limits, particularly when online statements or posts are perceived as threatening or linked to criminal activity.

There are a number of defenses available in Canada and the United States. Canadians are protected under the “freedom of speech“the law under the Charter of Rights and Freedoms and Americans are protected under it”Freedom of expression“The law defined the Constitution.

However, under the Canadian Charter, section 2(b) explicitly states that it has been held that protected expression include music in addition to art, dance, physical movements and marches with banners.

“Artists basically use it to write whatever they want in their music and express themselves in whatever way they feel is necessary,” De Boyrie said. “It’s global. This doesn’t just apply to rappers, it applies to all of us.

What are the limits of freedom of expression online?

Although platforms often promise open discourse, the law imposes limits to prevent harm, defamation and incitement.

The Canadian Charter of Rights and Freedoms guarantees freedom of expression, but also allows the government to impose restrictions if they are deemed “reasonable in a free and democratic society.” These limits also apply to media publications and religious expression if they incite violence or promote harmful ideas.

In practice, this means certain types of speech, like hate speech, defamationand incitement to violence – may be restricted. For example, Canada’s Criminal Code prohibits “the willful promotion of hatred”, which has resulted in charges against individuals who post content targeting specific groups based on race, religion or ethnicity. sexual orientation. In one notable case, a man was prosecuted in 2017 for promoting neo-Nazi views onlinemarking one of the few but important uses of hate speech laws in Canada to combat harmful expression online. In January 2023, he was found guilty.

Can I be sued based solely on my online personality?

In Canada, it is rare for a person to be prosecuted solely based on their online identity, as courts generally require substantial evidence beyond social media posts.

However, when the content touches on areas such as incitement, explicit threats or direct references to criminal activity, authorities may consider it as a starting point to examine it more seriously in a legal context.

“You might attract the attention of the police, and they might start investigating if there is evidence,” says De Boyrie. “But if they determine that there isn’t one, then yes, you just express yourself freely.”

Authorities often monitor online content that appears to promote violence, make threats, or refer to criminal activity. Even if such posts are later dismissed as “entertainment” or expression, they can raise red flags, potentially triggering further investigation.

Although disclaimers can help lessen public perception of a controversial image online, De Boyrie points out that once content is posted online, it is effectively permanent.

“If you say something online, it’s there forever, you can never take it back,” he adds. “You can clarify…but it all comes down to the evidence, these online statements…basically call for an investigation.”

Hassan Ali’s lawyer, Gary Grill, argued that the evidence against his client was weak, calling it “trial rap” because it relied largely on Ali’s online personality and words. Although it can be difficult to establish guilt based on online statements alone, De Boyrie emphasizes that lawyers will always oppose anything that infringes on their clients’ freedom of expression.

“Many people are unaware that there are certain restrictions on our freedom of expression,” notes De Boyrie, emphasizing that certain restrictions are included in the penal code.

“It is important for young people to understand this, because they are often the ones facing these accusations. »