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The case of Ian Linkletter v. Proctorio, Incorporated, 2023 BCCA 160 centres around whether sharing unlisted video links to YouTube would violate copyright and breach confidentiality. The case aims to strike a balance between private rights and public interest.
Proctorio is a remote proctoring software. They provide exam-monitoring products for online assessments and gained immense popularity during the pandemic. Proctorio uploaded instructional videos on YouTube in their self-help section, marked as unlisted, with links available solely on its online platform, accompanied by terms of service, including a confidentiality clause.
An unlisted video on YouTube is not publicly searchable or visible in the YouTube search results, video recommendations, or the uploader's channel. Unlike public videos, which can be found through YouTube's search functionality, unlisted videos can only be accessed by people with a direct link to the video.
Ian Linkletter, a learning technology specialist at the University of British Columbia, criticized Proctorio's software and CEO. He accessed the unlisted videos through Proctorio's platform and shared the links on Twitter, expressing his negative opinions. Proctorio sued Linkletter for breach of confidence and copyright infringement, securing an interim injunction against further link sharing.
Linkletter sought to dismiss the lawsuit under the Protection of Public Participation Act, arguing that his tweets contributed to a public debate on educational surveillance software and did not breach confidentiality or copyright obligations.
Linkletter claims that he experienced reprisals for advocating against the adoption of Proctorio, citing privacy apprehensions. The crux of his legal position centers on safeguarding the rights of whistleblowers and employees to voice apprehensions about potentially unethical or unlawful activities within their respective organizations.
Proctorio argued that Mr. Linkletter's sharing of links does not qualify as expression. The emphasis is placed on the notion that it is not the substantive content of the message accompanying the links but the mere act of sharing the links that Proctorio considers non-expression. The critical point underscored by Proctorio is that the primary objective of the legal action is not to curtail expression on topics of public interest but rather to address instances of breaches involving confidentiality and copyright. Specifically, Proctorio highlights Mr. Linkletter's disclosure of confidential information owned by Proctorio as the focal point of the legal dispute.
In its thorough analysis, the court determined that Mr. Linkletter's act of sharing links constituted expression on a matter of public interest, particularly the use of surveillance software in educational settings. The judge also evaluated Proctorio's claims of breach of confidence and copyright infringement, finding reasonable grounds to believe these claims had substantial merit.
The court acknowledged that there is a low threshold on the kinds of information capable of constituting confidential information and merely making information inaccessible to the general public may be sufficient. The court therefore concluded that Proctorio had taken concrete steps to keep the shared materials confidential. Additionally, by sharing the unlisted videos, the judge found grounds to believe that Mr. Linkletter had compromised the integrity of Proctorio's confidentiality measures.
The court also ruled that Linkletter's link-sharing could constitute a breach of copyright, rejecting his license claim under YouTube's terms of service. Notably, the court stated that the Protection of Public Participation Act does not shield expressions unnecessary for public debate, causing significant harm to the plaintiff.
Ultimately, the decision reflects a nuanced consideration of competing interests, highlighting the importance of protecting expression on matters of public interest while recognizing legitimate claims of confidentiality and copyright infringement. The case sets a precedent for navigating the intersection of free expression, confidentiality, and intellectual property rights in rapidly evolving technological landscapes.