Linkletter claims judge hearing case against Proctorio made ‘errors of fact and law’ in new appellate brief
Ian Linkletter’s legal team argued the judge overseeing his anti-SLAPP claim against Proctorio “made manifest and compelling errors of fact and law” in an appeal brief released Wednesday.
Proctorio sued Linkletter – who was then a UBC staffer – in September 2020 after he tweeted links to unlisted YouTube videos explaining how the company’s surveillance software works and a screenshot of his center help. UBC used Proctorio to monitor online exams throughout the pandemic until it restricted use of the software in March 2021.
Linkletter filed for an Anti-Strategic Public Involvement Lawsuit (SLAPP) in October 2020, arguing that the lawsuit was baseless and an attempt to silence him. The application was heard by the Supreme Court of British Columbia in February 2022 after several delays. Judge Warren B. Milman denied almost all of Linkletter’s claim in a March decision.
In his judgment, Milman made it clear that there was thus far no concrete evidence of harm resulting from these tweets, but concluded that Proctorio had discharged the burden that there were grounds to believe that there were cases of copyright infringement and breach of trust.
Milman granted only two parts of Linkletter’s request which challenged Proctorio’s claim against a tweet containing a screenshot of Proctorio Academy and the claim that Linkletter had circumvented “technological protection measures” – which he reaffirmed at a July 20 hearing after the two sides could not agree on the wording of the judge’s ruling.
The judge also restricted Proctorio’s interim injunction preventing Linkletter from talking about how Proctorio operates through public sources.
Linkletter’s legal team had 90 days to submit an appeal brief and factum after filing a notice of appeal with the British Columbia Court of Appeal in April. If the appeal is successful, Proctorio’s lawsuit will not be heard in court.
In a 42-page brief, Linkletter attorneys Catherine Boies Parker and Julia Riddle said Milman made three errors when he ruled that a majority of Linkletter’s anti-SLAPP claim should be dismissed under British Columbia’s Protection of Public Participation Act (PPPA), a law designed to protect citizens from SLAPP suits.
On the first error, Boies Parker and Riddle said Milman “erred in his analysis” that Proctorio demonstrated that Linkletter breached his confidentiality obligation to the company.
Regarding the second error – that Proctorio’s copyright claims had substantial merit – Linkletter’s legal team said their client’s tweets containing hyperlinks to videos did not violate the 1985 law. on copyright.
“Mr. Linkletter’s tweets were telling other internet users where the videos could be found. The Tweets did not convey the work to the user themselves, as evidenced by the fact that Proctorio was able to and promptly deleted the videos Proctorio controlled at all times the public’s ability to view the videos he decided to put on a public YouTube channel,” they wrote.
Finally, Boies Parker and Riddle wrote that Milman erroneously judged Proctorio to have demonstrated that the harm suffered by Linkletter’s tweets outweighed the public interest in protecting Linkletter’s expression.
In a statement sent to The UbyssianProctorio said he believed Milman correctly denied Linkletter’s claim and that the appeal “was without merit.”
Linkletter said the brief details the “numerous errors that contributed to the clearance of portions of Proctorio’s lawsuit” in a statement posted to his GoFundMe on Wednesday.
He added that if he could be prosecuted for tweeting a hyperlink, anyone could be next.
Linkletter thanked Boies Parker, Riddle and those who supported him throughout the legal process.
“Today marks a big step forward, and I wouldn’t be here without your help… One step at a time, we’ll get to the end together.”