A UBC employee who criticized his school’s online exam supervision software on social media has lost his appeal.
The case goes back to June 2020, when students were learning online and not attending in-person exams because of the COVID-19 pandemic.
The plaintiff, Proctorio Inc., developed software designed to monitor or “proctor” students writing examinations on their computers at home.
Faculty of Education technologist Ian Linkletter took issue with the way Proctorio and its CEO dealt with a student’s complaint after the student called Proctorio’s helpline during an exam. In online discussions, Linkletter alleged Proctorio’s software was causing students emotional distress and harm.
“In order to learn more about Proctorio’s software, Mr. Linkletter created a 'sandbox' or test course and designated himself as an instructor,” Justice Lauri Ann Fenlon wrote in the unanimous, three-judge panel decision.
On Aug. 23, 2020, he logged on to Proctorio’s online platform where instructors can learn about how the software functions through instructional YouTube videos, accessible only by links provided by the company.
Fenlon said Linkletter then used Twitter to publish the links to seven such videos.
When Proctorio discovered the situation, it immediately disabled the links.
Linkletter responded by tweeting that the links were no longer working and criticized Proctorio for disabling them.
Proctorio began legal action on Sept. 1, 2020, alleging Linkletter was liable for breach of confidence, infringement of copyright and circumventing a technological protection measure contrary to the Copyright Act.
Linkletter applied to have Proctorio’s action dismissed under B.C.’s Protection of Public Participation Act. He claimed the suit was strategic litigation intended to silence his public criticism of Proctorio’s products, and that the case was in the public interest.
Fenlon disagreed. She said B.C. Supreme Court Justice Warren Milman found what was at issue was Linkletter’s sharing of Proctorio’s confidential information, not his expressions criticizing the software and its impact on students, expressions the proceeding did not inhibit.
“The judge concluded that the sharing of the unlisted videos was not necessary for Mr. Linkletter's purpose and accordingly the public interest in that particular expression was limited,” Fenlon said.
Further, she said, Linkletter was obliged to keep the Proctorio links confidential, based on the context in which he accessed them, and that sharing the links harmed Proctorio.
“The judge appropriately weighed the public interest,” Fenlon said. “He was alive to the limited harm to Proctorio of Mr. Linkletter’s actions but found it outweighed the limited public interest in protecting breaches of confidence and copyright that were not necessary for Mr. Linkletter to express his views.”
