Former UBC staff member Ian Linkletter presented his appeal of a judge’s decision to dismiss most of his anti-SLAPP application against Proctorio to the BC Court of Appeals on Friday, December 2.
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 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 under the Protection of Public Participation Act (PPPA) in a March ruling.
The judge also narrowed the interim injunction from Proctorio limiting Linkletter from speaking about how Proctorio works through public sources.
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Friday’s hearing was based on an appeal filed by Linkletter’s lawyers, Catherine Boies Parker and Julia Riddle, in July that argued Milman made three errors in his February decision.
These errors were deciding that Linkletter breached his obligation of confidence; that his tweets containing hyperlinks to videos violated copyright law; and that Proctorio had demonstrated that the harm suffered from Linkletter’s tweets outweighed the public interest in protecting Linkletter’s expression.
Justices Harvey M. Groberman, Lauri Ann Fenlon and Ronald A. Skolrood presided over the hearing.
“In our submission, this should have been sort of an archetypical PPPA dismissal,” Boies Parker said at the beginning of Friday’s hearing. “We have a corporate plaintiff who suffered no loss bringing an action against an individual defendant speaking out about the harms he believes are caused by the corporation's product.”
She argued Linkletter’s anti-SLAPP application should have gone through and Proctorio’s claims against him dismissed entirely.
On the Proctorio side, Tracey Cohen argued that Proctorio’s lawsuit is not about restricting Linkletter’s expression, but rather the sharing of content not previously available to the public.
“[Linkletter] is free to criticize Proctorio,” Cohen said. “What’s an issue was his going on to a restricted site as a result of him being an administrator, an instructor at the University of British Columbia and using his credentials to gain access to information which he concedes was protected by copyright.”
Cohen focused much of her opening statement countering Boies Parker’s argument that Linkletter did not breach his obligation of confidence by posting links to unlisted Youtube videos. She said sharing of these videos was like sharing an unlisted phone number or locker code.
“What Mr. Linkletter was doing was giving individuals access to something that they otherwise wouldn't have had access to — because without the locker combination, they couldn't get in,” Cohen said.
Boise Parker and Cohen also disagreed about whether Linkletter would have agreed to Proctorio’s terms of service before accessing videos in its Help Centre. Cohen said Linkletter violated Proctorio's terms of service by sharing the unlisted video links.
In a statement sent to The Ubyssey, Proctorio said it was “disappointed in Mr. Linkletter’s continued efforts to delay the restraining order granted to us more than two years ago.”
“Friday’s hearing confirmed the validity of Proctorio's concerns about Mr. Linkletter's misuse of the company's confidential intellectual property. Proctorio stands by the judge’s decision to dismiss the SLAPP," the statement read.
Linkletter said he was humbled by the support from his family, legal team and supporters in a statement posted on his blog following the hearing.
He also said a decision should be released in a few months.
“In the meantime, I will rest," he wrote. "I will find joy. I will spend time with loved ones. I will be the best librarian I can be. I will defend vulnerable students. And you can be sure that I will never back down from my beliefs. I will always have my freedom of expression."
— With files from Anabella McElroy