UBC staff member Ian Linkletter’s legal battle with Proctorio saw its first day in court yesterday, with the plaintiff’s and defendant’s legal teams arguing over whether to include some new filings and allow for further cross examination of Linkletter.
The hearing of Linkletter’s anti-Strategic Lawsuit Against Public Participation (SLAPP) application, intended to be heard in the BC Supreme Court yesterday and today, has been tentatively rescheduled for late July due to Proctorio’s new filings and requests.
Linkletter, a vocal critic of the virtual proctoring software, was sued by Proctorio last fall for posting links to what Proctorio called confidential videos. Linkletter counter filed an anti-SLAPP application under BC’s Protection of Participation Act (PPPA).
The PPPA passed the BC legislature with unanimous consent in 2019. Under the law, a person filing an anti-SLAPP lawsuit — in this case, Linkletter — has to prove that the specific thing they’re getting sued over is expression, and is in the public interest.
The respondent — in this case, Proctorio — must prove the lawsuit has merit, the applicant has no valid defence and that “the harm likely to have been or to be suffered by the respondent as a result of the applicant's expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.”
Proctorio has been a hot button topic at UBC over the last year, with students advocating against the use of the software until the UBC Vancouver Senate banned its use in March 2021. The UBC Okanagan Senate quickly followed suit.
UBC has not spoken publicly on this case nor offered Linkletter any public support, and UBC Media Relations declined to comment as the case is before the courts.
In the original civil claim from Proctorio, the company alleged that Linkletter “has repeatedly caused [Proctorio’s] copyrighted, confidential and proprietary information to be disseminated online inter alia via Twitter and has encouraged others to share [Proctorio’s] information, including the source code for the software.”
Proctorio brought the civil claim forward on the basis of “copyright infringement, circumventing technological protection measures and breach of confidence.”
Linkletter’s legal team maintains that the information in the tweets were publicly available.
Yesterday’s court proceedings
The bulk of yesterday’s discussion at BC’s Supreme Court centred around a line of questioning that took place in the cross examination of Linkletter on March 18.
Proctorio’s legal counsel asked for three main things: to allow for another hour of cross examination of Linkletter, to have Exhibit 1 from the cross-examination — a screenshot of several tweets that show another Twitter user with access to one of the “confidential” links — marked as an exhibit to that cross examination and to allow them to use new affidavits filed on April 15 and April 20 at the July hearing.
Y’all those videos from “proc-tore-eyo” are back up. https://t.co/U5Jxi1XAgA
— file under “anti-surveillance” (@hypervisible) August 30, 2020
Exhibit 1 consists of above tweet and replies
In the cross examination on March 18, legal counsel for Proctorio Tim Pinos began asking questions about Twitter user @hypervisible and how he gained access to a “confidential” Proctorio link.
Linkletter said he shared the video with that man who owns the account, Chris Gilliard, before his legal counsel stepped in and argued that this was not relevant to the upcoming hearing, halting the line of questioning.
In court yesterday, Pinos said he should have been able to ask those questions, as it was relevant to this case and another instance of Linkletter allegedly sharing copyrighted material and causing harm to Proctorio.
He argued that the extra hour of cross examination would allow for the completion of that line of questioning.
Linkletter’s legal counsel, Mark Underhill, argued that the new application containing these requests were “without merit,” noting that the anti-SLAPP application was supposed to be heard in court on April 29. Instead, they were debating this new application and the hearing had been delayed.
Underhill stressed that the inclusion of Exhibit 1 and another hour of related cross examination wouldn’t be relevant as the additional private sharing of one link has no bearing on any of the issues within PPPA. He said the cross examination should be limited to issues present in the application: Linkletter’s public postings, not his private correspondence.
On the inclusion of the new affidavits, Underhill argued that there has to be “substantial injustice” for these to be included and further questioned the need for the new affidavits as they address issues present in earlier filings. Included in one of the new affidavits is a print out of UBC policies.
He also questioned why these filings were only surfacing now, so close to the intended hearing date.
Pinos said the new materials were in fact new, and arose after the initial affidavits were filed. He said he didn’t know UBC policies were public.
Looking to the anti-SLAPP application hearing
BC Supreme Court Justice MacNaughton did not indicate when she would make a decision on the new filings, but said she understood that there was “some urgency” in this case.
In a mid-April interview, Linkletter said he hoped that this case could help to define the law in practice, and potentially set a precedent for anti-SLAPP suits that have to do with breach of confidence and copyright infringement.
“My hope with this … is that we’re going to hopefully map out a way forward for people who get struck with these lawsuits … to see how it was done and be able to follow in those footsteps at a lower expense,” Linkletter said.
Linkletter’s idea of a “just outcome” of the July hearing would be the dissolution of the injunction, the dismissal of the lawsuit and Proctorio fully paying for his legal fees.
When The Ubyssey reached out to Proctorio ahead of the proceedings on Thursday, the company did not comment on what it hoped to see out of the July hearing..
“Following weeks of obstruction, non-disclosure and delays from his legal team, including his counsel’s refusal to allow questions about his further disclosure of Proctorio confidential and copyrighted information, we look forward to the Court permitting a return to questioning and completing the evidentiary record,” a Proctorio spokesperson wrote in a statement.
The hearing of Linkletter’s anti-SLAPP application is tentatively scheduled for July 26–29, 2021.