Action against whistle-tweeting – not a SLAPP says Court

In Proctorio, Incorporated v Linkletter, 2022 BCSC 400, the Supreme Court of British Columbia dismissed an application under s 4 of the Protection of Public Participation Act (the “PPPA”) brought by an individual who was sued for disseminating restricted material. The Applicant, Mr. Linkletter, sought to halt Proctorio’s action by characterizing it as strategic litigation against public participation (“SLAPP”). In dismissing Mr. Linkletter’s application, the Court had to balance the right to express opinions on matters of public interest, the protection of confidential material on online platforms, and the interplay between licenses when dealing with material that cross different platforms.

Background

Proctorio offers exam proctoring software to education institutions. Proctorio’s software became popular as a result of the COVID-19 pandemic.  

However, Proctorio’s software faced scrutiny – there was debate about whether its surveillance practices distressed some students. After hearing about the poor service one of his students received, Mr. Linkletter, a learning technology specialist at the University of British Columbia, used his Twitter platform to criticize Proctorio’s software and practices. To support his criticism, Mr. Linkletter used his access to Proctorio’s software to disclose in tweets links to unlisted instructional YouTube videos (which cannot be found by searching), as well as a screenshot from Proctorio’s Academy webpage. Those materials were only intended to be provided to educators and administrators.

On September 1, 2020, Proctorio brought an action alleging that Mr. Linkletter was liable for:

1. the tort of breach of confidence;
2. copyright infringement, contrary to the Copyright Act; and 
3. circumventing technological protection measures, contrary to the Copyright Act.

The very next day after serving its claim, Proctorio obtained an interim junction order restricting Mr. Linkletter from sharing information he obtained from using and accessing Proctorio’s software. Mr. Linkletter was not present when this interim injunction was obtained.

The Issues

Mr. Linkletter brought this application asking the Court to dismiss Proctorio’s action and alleged that, contrary to the PPPA, it was a SLAPP suit and an attempt to “stifle criticism of Proctorio and its product”. Under s 4 of the PPPA, Mr. Linkletter had the burden to show that his expression relates to a matter of public interest.

If Mr. Linkletter succeeded in showing that his expression relates to a matter of public interest, the burden shifted to Proctorio who must show that:

1. its action has substantial merit;
2. Mr. Linkletter has no valid defence; and
3. any harm that Proctorio’s suffered, or will suffer, outweighs the public interest in protecting Mr. Linkletter’s expression.

Mr. Linkletter also sought to modify the interim injunction order against him on the grounds that it was overbroad and exceeded the claim brought by Proctorio.

Court Dismisses Mr. Linkletter’s Application

The Court found that that Mr. Linkletter had met his burden and the aim of Mr. Linkletter’s expression was regarding the use of Proctorio’s product and its effects on students. Proctorio attempted to argue that the disclosure of confidential links and the screenshot did not form part of the debate. The Court disagreed with Proctorio and found that Mr. Linkletter was using the confidential links and the screenshot to support his case.

The burden then shifted to Proctorio, who was able to demonstrate that two  out of its three allegations (the tort of breach of confidence and copyright infringement) had substantial merit and the harm it would suffer outweighed the public interest.

With respect to the tort of breach of confidence, the Court found that Proctorio had taken active steps to prevent the dissemination of its material without permission, including clauses in its Terms of Service Agreement that required users to keep the material confidential. Mr. Linkletter argued that all the information posted was public and that by virtue of posting the material on YouTube Mr. Linkletter was granted a license to use and disseminate the videos as he pleased. The Court disagreed on both points. The Court noted that the publicly available material had not been assembled in the same way as the content Proctorio provided. Furthermore, Mr. Linkletter’s access to the material did not arise from using YouTube but by virtue of being a user of Proctorio’s software, therefore he had to abide by Proctorio’s Terms of Service Agreement.

With respect to the allegation of copyright infringement, Mr. Linkletter conceded that Proctorio’s material carried copyright protection but argued that:

1. there could be no infringement by sharing the hyperlinks;
2. that the hyperlinks carried an implied license from YouTube;
3. that the screenshot was not a “substantial part” of the work;
4. he was engaging in fair dealing; and
5. the content was non-commercial user generated content.

The Court found that the only viable defence was with respect to the screenshot. The Court found that Mr. Linkletter had a viable defence that the screenshot did not form a “substantial part” of the work.

The Court concluded that Proctorio had satisfied its burden and dismissed the application under s 4 of the PPPA.

Court Amends Interim Injunction Order

Despite losing on the application, the Court agreed with Mr. Linkletter that the interim injunction order dated September 2, 2020, was vague and broader than the issues in the case. The Court found that undefined terms such as “Confidential Information” and “Application IP” were problematic.

The Court went onto modify the terms of the interim injunction to information related to Proctorio’s Help Centre documentation, Proctorio Academy training, and any hyperlinks it provided. This was in line with the Court’s findings that Proctorio’s success on the application was predicated on narrowing its claim to the aforementioned material. The Court added that Mr. Linkletter was able to engage with and disseminate material that he obtained from any public source.

The decision can be found here.