Case information

Intellectual property — Copyright — Hyperlinks — Breach of confidence — Protection of public participation — Whether exclusive rights granted to authors by the Copyright Act can be interpreted to prohibit sharing of hyperlinks — Whether sharing widely available information can constitute a breach of confidence — Nature of exercise court undertakes in determining legal tenability of claim interfering with freedom of expression on matter of public interest — Whether court can dismiss unprecedented claim framed as presenting novel question of law — Whether it should do so — Nature of public interest in allowing private litigation to continue despite impact on freedom of expression — Whether plaintiff must demonstrate likelihood of loss giving rise to remedy in law — Whether showing some other detriment not capable of giving rise to redress is sufficient.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Proctorio, Inc., developed a software product designed to monitor (or proctor) students writing exams on their home computers. Proctorio’s software is used by some faculties at the University of British Columbia. Mr. Linkletter was offended by the way Proctorio and its CEO dealt with a UBC student’s complaint about the quality of service received from Proctorio’s helpline during an exam. He expressed his concerns publicly. Then, to learn more, he created a test course, which allowed him to access Proctorio’s instructional videos. The videos are on YouTube, but are unlisted, so they are available to anyone with the correct link, but cannot be accessed without them. YouTube imposes its own terms of service. Mr. Linkletter published the links to seven of the videos on Twitter. Upon discovering this, Proctorio disabled the links and replaced them with new, private links. Mr. Linkletter advised his Twitter audience that the links had been disabled and criticized Proctorio for disabling them. One of his tweets included a screenshot of the Academy web page showing those links as unavailable. Proctorio initiated a claim for breach of confidence, infringements of ss. 3 and 27 of the Copyright Act, R.S.C. 1985, c. C-42, and circumventing a technical protection measure contrary to s. 41.1 of the Copyright Act. Without notice to Mr. Linkletter, it obtained an interim injunction prohibiting him from downloading or sharing information from the Help Centre or the Academy, or encouraging others to do so, among other things. Mr. Linkletter applied for an order dismissing the action under s. 4 of the Protection of Public Participation Act, S.B.C. 2019, c. 3 (“PPPA”). He alleged that Proctorio was using the action as a strategic litigation against public participation suit, not advancing a bona fide claim. Mr. Linkletter’s application to have the action dismissed under s. 4 of the PPPA was dismissed. His application to set aside the interim injunction was allowed in part. His appeal was dismissed.