Ian Linkletter’s legal team argued the judge overseeing his anti-SLAPP application against Proctorio “committed palpable and overriding errors of fact and of law” in an appeal factum published Wednesday.
Proctorio sued Linkletter — who was then a UBC staff member — in September 2020 after he tweeted links to unlisted YouTube videos explaining how the company’s proctoring software worked and a screenshot from its help centre. UBC used Proctorio to invigilate online exams throughout the pandemic until it restricted usage of the software in March 2021.
Linkletter filed an anti-strategic lawsuit against public participation (SLAPP) application in October 2020, arguing that the lawsuit was groundless and an attempt to silence him. The application was heard in the BC Supreme Court in February 2022 following several delays. Justice Warren B. Milman dismissed almost all of Linkletter’s application in a March ruling.
In his judgment, Milman made it clear that there is no concrete evidence of harm as a result of these tweets so far, but found Proctorio had met the burden that there were grounds to believe there were incidences of copyright infringement and breach of confidence.
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Milman only granted two parts of Linkletter's application that challenged Proctorio’s claim against a tweet containing a screenshot of the Proctorio Academy and the claim that Linkletter circumvented "technological protection measures" — which he reaffirmed in a July 20 hearing after both parties could not agree on the wording of the judge's ruling.
The judge also narrowed the interim injunction from Proctorio limiting Linkletter from speaking about how Proctorio works through public sources.
Linkletter’s legal team had 90 days to submit an appeal record and factum after filing a Notice of Appeal to the BC Court of Appeals in April. If the appeal is successful, Proctorio's lawsuit will not be heard in court.
In a 42-page factum, Linkletter's lawyers Catherine Boies Parker and Julia Riddle said Milman made three errors when he ruled that a majority of Linkletter’s anti-SLAPP application should be dismissed under BC’s Protection of Public Participation Act (PPPA), a law intended to protect citizens from SLAPP suits.
On the first error, Boies Parker and Riddle said Milman “erred in his analysis” that Proctorio demonstrated that Linkletter breached his obligation of confidence with the company.
The lawyers argued that the video links Linkletter tweeted did not require confidence because they were easily available online, Linkletter was not obligated to confidence because he didn’t need to sign Proctorio’s Terms of Agreement to access the videos and the sharing of these videos did not harm the company.
On the second error — that there was substantial merit to Proctorio’s copyright claims — Linkletter’s legal team said their client’s tweets containing hyperlinks to videos don’t violate the Copyright Act of 1985.
“Mr. Linkletter’s tweets told other internet users where the videos could be found. The Tweets did not transmit the work to the user themselves, as shown by the fact that Proctorio could and did swiftly remove the videos. Proctorio at all times controlled the ability of the public to view the videos it had decided to put on a public YouTube channel,” they wrote.
Lastly, Boies Parker and Riddle wrote that Milman incorrectly ruled that Proctorio had demonstrated that the harm it experienced from Linkletter’s tweets outweighed the public’s interest in protecting Linkletter’s expression.
In a statement sent to The Ubyssey, Proctorio said it believed Milman properly dismissed Linkletter's application and that the appeal "is without merit."
Linkletter said the factum details the “many mistakes that contributed to parts of Proctorio’s lawsuit being allowed to proceed” in a statement posted on his GoFundMe on Wednesday.
He added that if he could be sued for tweeting a hyperlink, anyone could be next.
Linkletter thanked Boies Parker, Riddle and those who have supported him throughout the legal proceedings.
“Today marks a major step forward, and I wouldn’t be here without your help … One step at a time, we’ll get to the end together.”