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SLAPP’ed Back to Court for Letting the Links Out

The British Columbia Court of Appeal dismissed an appeal by Mr. Linkletter of his “anti-SLAAP” application to dismiss the proceedings against him by Proctorio Inc. for copyright infringement, breach of confidence, and circumvention of technological protection measures.

In 2020, Linkletter spoke out publicly against Proctorio’s software for remote examinations and the handling of student complaints. Linkletter used his position as a learning technology specialist at the University of British Columbia’s Faculty of Education to access the software and obtain private YouTube links for Proctorio’s help videos, which he then published on Twitter. Proctorio sued Linkletter and obtained an ex parte injunction prohibiting him from downloading or sharing information from Proctorio’s online platform or encouraging others to do so.

Linkletter responded with an “anti-SLAPP” (anti-strategic lawsuit against public participation) application—pursuant to section 4 of British Columbia’s Protection of Public Participation Act to dismiss the action or, in the alternative, to set aside or narrow the injunction. The Application Judge dismissed the application in part, allowing the breach of confidence and certain copyright claims to continue (see our previous blog post here).

The Court of Appeal held the Application Judge did not err in finding both the breach of confidence and copyright claims had “substantial merit”. With respect to copyright, the Court of Appeal considered that “[w]hether sharing a controlled link to an unlisted video amounts to a publication of a video rather than a mere direction or reference appears to be a novel question which should not be ruled out at this early stage of the proceeding.”

Notably, the fact that sharing the links was not necessary to convey Linkletter’s message to his Twitter audience was relevant to the Court of Appeal’s findings that (1) Linkletter did not have a valid defense to earlier allegation, and (2) that the Application Judge did not err in balancing the public interests. In copyright terms, the Court of Appeal found “the criticism would have been equally effective if it did not actually reproduce the copyrighted work it was criticizing.”

A copy of the decision can be found here.