After nine months of delays, former UBC staff member Ian Linkletter's legal counsel told the BC Supreme Court this week that Proctorio’s confidentiality lawsuit against him was meritless.
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 under BC’s Protection of Public Participation Act (PPPA).
Linkletter’s application was supposed to be heard in April 2021, then July 2021 and then in the fall. Proctorio petitioned to include more affidavits and more cross-examination in April, but the court ruled against including most of the new filings in June. Proctorio appealed that decision, to the Court of Appeals just rejected last week.
Linkletter was a learning technology specialist in UBC’s faculty of education. He left UBC in January.
Under the PPPA, Linkletter has to prove that the eight tweets he’s being sued over constitute an expression, and an expression that is in the public interest. Proctorio has to prove that its lawsuit has merit, that Linkletter has no valid defence and that the public interest in the proceeding going forward is greater than the public interest of protecting Linkletter’s expression.
Linkletter’s lawyer Catherine Boies Parker argued that Linkletter’s tweets constituted a form of expression under the PPPA. According to the act, expression is defined as “any communication, whether it is made verbally or non-verbally, publicly or privately, and whether it is directed or not directed at a person or entity.”
She said that Proctorio targeted Linkletter with its lawsuit against the defendant when others were also posting about the company’s invigilation software.
Boies Parker said Linkletter’s tweets demonstrated how Proctorio’s software operates and impacts students — both of which are a great matter of public interest, she argued.
She also noted that Linkletter’s tweets came at a time when there was a broader discussion around UBC’s use of Proctorio, adding to their relevance. UBC halted use of Proctorio in March 2021 following racial discrimination concerns, with few exceptions.
Proctorio’s lawyer Tim Pinos argued that the tweets constituted a breach of confidence and an infringement of copyright law.
Seven of Linkletter’s tweets contained hyperlinks to unlisted YouTube videos that are only accessible through the company’s help centre. Pinos argued that by including these links in his tweets, Linkletter was sharing confidential information.
Pinos also argued that Linkletter intended to attack and harm Proctorio through his tweets by limiting the software’s value to customers and giving students an advantage to sidestep its invigilation capabilities during exams.
Pinos added that Linkletter was not being muzzled because he continues to tweet about the lawsuit and crowdfunds to support his court fees.
In response to Proctorio’s argument on the confidentiality of the videos and screenshot Linkletter shared, Boies Parker rebutted that these claims lacked merit because the information included in the tweets can be accessed elsewhere on the internet. She also argued that if Proctorio wanted this information to be confidential, it shouldn’t have been posted on YouTube.
The hearing adjourned a day earlier than scheduled on Thursday. BC Supreme Court Justice Warren B. Milman announced that he will reserve judgement.
In a tweet sent shortly after the adjournment, Linkletter expressed gratitude to those who have supported him during this legal saga.
“Thank you so much for standing against Proctorio with me! I will never forget this well-earned moment,” he wrote.
– With files from Elif Kayali and Paloma Green