Anti-SLAPP: BCCA Dismisses Appeal of Ex-UBC Employee Sued For Tweeting Links
By Jamie Dublanko
An ex-University of British Columbia [UBC] employee who tweeted links to instructional videos was sued for copyright infringement and breach of confidence. The British Columbia Court of Appeal [BCCA] has dismissed his appeal that the lawsuit should be dismissed under anti-SLAPP legislation.
Students reading this article have likely had their education shaped by measures put in place to mitigate the spread of COVID-19. One such measure was remote examinations, often proctored by third-party services that may use live-proctors, recordings, or complex algorithms to detect cheating.
Using remote proctoring has not been without challenges and criticism. Issues raised include the impact of surveillance on student mental health, discriminatory algorithms, and inequitable access to technology. One such critic is Ian Linkletter, who was sued after sharing unlisted YouTube videos in a series of tweets criticizing a remote proctoring service.
A recent ruling by the BCCA brings into question what information can be shared in leveling public criticisms, and what protection is afforded under current anti-SLAPP legislation.
Background
At UBC, a student claimed that the American online proctoring service, Proctorio, failed to provide support when the student encountered problems during an online UBC exam. The student, who identified as a second-year arts major to The Ubyssey, posted a photo of their live help chat to Reddit on June 27, 2020. Proctorio’s CEO, Mike Olsen, replied to the thread by posting a transcript of the conversation, edited to remove the student’s name.
In response to the June 2020 incident, the AMS (the UBC Vancouver’s Student Union) released an open letter calling on UBC to end its relationship with Proctorio, citing Proctorio’s disregard for student privacy and concerns about algorithmic test proctoring software.
Ian Linkletter, who at the time was employed as a Learning Technology Specialist in the UBC’s Faculty of Education, was also critical of Proctorio and its CEO on Twitter.
On June 26, Linkletter tweeted: “I'm agitated tonight because the CEO of Proctorio attacked a student in my University's subreddit, calling them a liar and posting their chat support logs. Many examples of this online. Unacceptable behaviour. One sloppy CTRL+F away from breaking the law…”
Linkletter, who had never directly used Proctorio before, then set up a fictitious course using Proctorio to learn more. As the instructor of the fictitious course, he had access to the materials in the Support Center, including several unlisted tutorial videos posted on YouTube. Unlisted YouTube videos cannot be searched by the public and are only accessible through the correct link.
Over August 23 and 24, 2020, Linkletter shared the links to the following videos in a series of tweets encouraging people to learn “how this software functions so we can criticize it:”
“Abnormalities,”
“Behaviour Flags,”
“Display Room Scan,”
“Abnormal Eye Movement,”
“Abnormal Head Movement,”
“Record Room,” and
“Behaviour Setting.”
Upon discovering the tweets, Proctorio immediately disabled the links. Linkletter then tweeted a screenshot of the Academy webpage showing the unavailable links, along with further criticism of Proctorio.
In response to the shared links and the screenshots, Proctorio brought an action against Linkletter in September 2020, alleging Linkletter was liable for the tort of breach of confidence, infringement of copyright contrary to ss. 3 and 27 of the Copyright Act, and circumventing a technological protection measure contrary to s. 41.1 of the Copyright Act.
Proctorio also obtained an interim injunction without notice to Linkletter, prohibiting him from downloading or sharing information from the Help Center or encouraging others to do so.
Linkletter argued that the lawsuit was “strategic litigation against public participation,” or a “SLAPP” suit, intended to stifle his criticisms of Proctorio. On that basis, Linkletter applied to have the suit dismissed under s. 4 the Protection of Public Participation Act [PPPA], BC’s anti-SLAPP legislation.
If the action is dismissed under the PPPA, Linkletter may be entitled to full-indemnity costs unless deemed inappropriate by the court in the circumstances.
In 2022, the British Columbia Supreme Court narrowed the terms of the injunction and dismissed both the claim that Linkletter circumvented a technological protection measure and the claim that the Academy screenshot violated the Copyright Act. However, the court concluded Proctorio’s claims for breach of confidence and infringement of copyright had substantial merit and could not be dismissed under the PPPA.
On appeal, the BCCA agreed with the chambers judge and did not dismiss the action against Linkletter.
Anti-SLAPP Legislation & British Columbia’s PPPA
Given that SLAPP lawsuits are meant to deplete the resources and efforts of public critics, anti-SLAPP legislation such as the PPPA are screening tools “designed to allow individuals to have the lawsuit against them dismissed at a very early stage if that lawsuit qualifies as a SLAPP.”
However, the robustness of anti-SLAPP legislation is limited by the courts inclination to give the plaintiff their day in court, “rather than dismissing them on a preliminary motion where a full assessment of the merits isn’t possible.”
So far, British Columbia, Ontario, and Quebec are the only Canadian jurisdictions with anti-SLAPP legislation. BC’s anti-SLAPP legislation was enacted in 2019 and is modeled after anti-SLAPP laws in Ontario and Quebec.
Section 4 of the PPPA sets out the applicable test to have an action dismissed. First, the defendant (Linkletter) must demonstrate on a balance of probabilities that the action arises from an expression relating to a matter of public interest.
If the defendant meets their burden, the action must be dismissed unless the plaintiff (Proctorio) is able to demonstrate that there are grounds to believe the action has substantial merit and the defendant has no valid defence.
If the plaintiff meets their burden, the court must then consider if the harm suffered as a result of the expression is serious enough to outweigh public interest in protecting that expression. This weighing exercise is often the “crux” of the analysis and determines the outcome.
The Decision
The appeal raised four issues:
Were the hyperlinks shared by Linkletter an “expression” as defined in the PPPA;
Were there grounds to believe the breach of confidence claim had substantial merit given that the information was widely available online and caused no harm to Proctorio;
Were there grounds to believe the breach of copyright claim had substantial merit; and
Did the judge weigh these interests as mandated by the legislation?
The court ruled that Linkletter’s tweets containing links did constitute expression, as “expression” is defined very broadly in the PPPA and need only be causally connected to the proceeding.
With respect to the second issue, the court determined that even though the information tweeted by Linkletter was largely available online prior to his tweets, it was in a “diffuse and scattered form,” so the requisite element of confidentiality was met. As well, given the circumstances in which Linkletter accessed the videos and the potential detriment to Proctorio, the breach of confidence claim has substantial merit.
With respect to the breach of copyright claim, the court stated “whether sharing a controlled link to an unlisted video amounts to a publication rather than a mere reference is a novel question which should not be ruled out at this early stage of the proceeding.”
In determining if “the public interest in continuing the proceeding outweighs the public interest in protecting that expression,” the BCCA deferred to the chamber judge’s finding that the limited harm to Proctorio outweighed the public interest in protecting Linkletter’s alleged breaches of confidence and copyright that were “not necessary for Mr. Linkletter to express his views.”
Accordingly, the appeal was dismissed.
Hansman v. Neufeld
One month after Linkletter’s appeal dismissal, the Supreme Court of Canada (SCC) released its decision in Hansman v Neufeld [Hansman]. The SCC granted Hansman’s appeal and dismissed the defamation action against him as a SLAPP under the PPPA.
The decision follows the 2020 SCC landmark anti-SLAPP suits from Ontario (1704604 Ontario Ltd. v. Pointes Protection Association, Bent v. Platnick), and provides guidance for the crucial weighing stage of the anti-SLAPP analysis.
What may have been relevant to Linkletter are the SCC’s comments on harm. Specifically, the clarification that the plaintiff must provide sufficient evidence such that a judge may infer a likelihood of harm sufficient to outweigh the public interest in protecting the defendant’s expression. Similarly, the sufficient evidence must be provided to enable the court to infer a causal link between the defendant’s expression and the harm suffered.
Given the limited harm Proctorio was able to establish in this case, perhaps the SCC decision in Hansman would be relevant.
However, given the novelty of copyright and confidence issues introduced in the case, it seems unlikely that the action would be dismissed preliminarily. These are also new waters–Linkletter was the first anti-SLAPP motion brought against copyright infringement and breach of confidence claims.
