Linkletter considering appeal after anti-SLAPP application against Proctorio lawsuit mostly refused

Former UBC staff member Ian Linkletter’s anti-SLAPP application against Proctorio has been refused, meaning that Proctorio can go ahead with most of its lawsuit.

The ruling was made under BC’s Protection of Public Participation Act (PPPA), a law intended to protect citizens from strategic lawsuits against public participation.

Justice Warren B. Milman found that while Proctorio’s claims about “circumvention of technological protection measures” and the sharing of a screenshot of the Proctorio Academy website — the company's help centre — should be dismissed, the rest stands. This means that seven of Linkletter’s tweets featuring links to Proctorio tutorial videos are still on the table for the breach of confidence and copyright infringement claims.

Proctorio, a remote proctoring software headquartered in the United States, sued Linkletter in September 2020 after he tweeted out links to unlisted YouTube videos explaining how Proctorio’s software works. Proctorio claimed these videos contained confidential information. Linkletter filed an anti-strategic lawsuit against public participation (SLAPP) application in October 2020.

Three adjournments and one dismissed appeal later, Linkletter’s team argued their case in the Supreme Court in early February.

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 that Proctorio had met the burden that there were grounds to believe there were incidences of copyright infringement and breach of confidence.

Milman found that Proctorio proved that the interest in this lawsuit outweighed the “deleterious effects on expression and public participation.”

However, Milman did edit the September 2, 2020 injunction to clarify that Linkletter is prevented from “downloading, disseminating, copying, recording, posting, transferring, or sharing” information from the Proctorio Academy and hyperlinks to anything within them. Linkletter is also prohibited from “encouraging others to do any of the foregoing.”

Milman also said he would edit it to be clear that Linkletter can share and post any information that he “obtained from any public source.”

In a statement posted to his GoFundMe, Linkletter said he found the edit to the injunction to be an “enormous relief.”

“I no longer have to worry about my communications about Proctorio - including about how the software works, and how it harms students,” he wrote.

Proctorio framed this development as Linkletter losing this case in a statement to The Ubyssey.

"The Court agreed that our case was never about silencing his freedom of expression. As we've said from day one, this was a narrow action taken as a last resort because Mr. Linkletter illegally and repeatedly distributed our confidential and copyrighted information online," David Lux of Proctorio wrote in a statement. "We thank the Court for its time and look forward to presenting our full case."

While acknowledging that his application was mostly rejected, Linkletter wrote that since the Court found “that the harms alleged by Proctorio are unlikely to materialize,” he thought there would be “little reason” for Proctorio to continue the litigation.

“What happens next isn’t clear to me yet, but I am certain that this isn’t over. I remain of the view that the lawsuit should have been entirely dismissed under the PPPA, and so I am considering an appeal,” he wrote.

“For now, I will cherish my freedom and use my voice to protect students, as you protected me. And hey, if you want to join me, I’ve got your back.”