Teresa Scassa - Blog

On March 29, I appeared before Ontario's Standing Committee on Social Policy on the topic of the government's proposed Bill 88. My statement, which builds on an earlier post about this same bill is below. Note that the Bill has since received Royal Assent. No definition (as proposed below) of electronic monitoring was added to the bill by amendment. None of the amendments proposed by the Ontario Information and Privacy Commissioner were added. Remarks by…

 

Note: My paper The Surveillant University: Remote Proctoring, AI and Human Rights is forthcoming in the Canadian Journal of Comparative and Contemporary Law. It explores a necessity and proportionality approach to the adoption by universities of remote proctoring solutions. Although the case discussed in the post below addresses a different set of issues, it does reflect some of the backlash and resistance to remote proctoring.

In 2020, the remote AI-enabled exam proctoring company Proctorio filed suit for copyright infringement and breach of confidence lawsuit against Ian Linkletter, a BC-based educational technologist. It also obtained an interim injunction prohibiting Linkletter from downloading or sharing information about Proctorio’s services from its Help Center or online Academy. Linkletter had posted links on Twitter to certain ‘unlisted’ videos on the company’s YouTube channel. His tweets were highly critical of the company and its AI-enabled exam surveillance software. He responded to the suit and the interim injunction with an application to have the underlying action thrown out under BC’s Protection of Public Participation Act (PPPA). This anti-SLAPP (strategic litigation against public participation) statute allows a court to dismiss proceedings that arise from an expression on a matter of public interest made by the applicant. On March 11, 2022, Justice Milman of the BC Supreme Court handed down his decision rejecting the PPPA application.

Linkletter first became concerned with Proctorio (a service to which the University of British Columbia subscribed at the time) after a University of British Columbia (UBC) student had her chat logs with Proctorio published online by the company after she complained about the service she received during an exam. In order to learn more about Proctorio, Linkletter developed a ‘sandbox’ course for which he was the instructor. This enabled him to access Proctorio’s online Help Center and its ‘Academy’ via UBC. These sites provide information and training to instructors. The Help Center had a number of videos available through YouTube. The URLs for these videos were unlisted, which meant that they were not searchable through YouTube’s site, although anyone with the link could access the video. Mr. Linkletter posted some of these links to Twitter, expressing his concerns with the contents of the videos. The company disabled the links, and created new ones. Linkletter also posted a screenshot of the Academy website with a message indicating that the original links were not available.

Justice Milman did not hesitate to find that the applicant had expressed himself on a matter of public interest. He noted that the software adopted by UBC “has generated controversy, there and elsewhere, due to concerns about its perceived invasiveness and what is thought by some to be its disparate and discriminatory impacts on some students.” (at para 3). The onus shifted to the respondent Proctorio to demonstrate the substantial merit of its proceedings, the lack of a valid defence by the applicant, and the seriousness of the harm it would suffer relative to the public interest in the expression. The threshold to be met by Proctorio was to demonstrate “that there are grounds to believe that its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success” (at para 56).

Proctorio’s lawsuit is essentially based on three intellectual property claims. The first of these was a breach of confidence claim relating to the unlisted YouTube video links. To succeed with this claim, the information at issue must be confidential; the circumstances under which it was communicated must give rise to an obligation of confidence; and the defendant must have made unauthorized use of the information to the detriment of the party communicating it. Justice Milman found that the respondent met the threshold of ‘substantial merit’ on this cause of action.

What Linkletter posted publicly on Twitter were links to videos. Proctorio claimed that it was these videos (along with a screen shot of a message on its Academy website) that were the confidential information it sought to protect. Although there are a number of factors that a court will take into account in assessing the confidentiality of information, the information must have a confidential nature and the party seeking to protect it must have taken appropriate steps to protect its confidentiality.

Unlisted YouTube video links are not publicly searchable, yet anyone with the link can access the content – and YouTube’s terms of service permit the sharing of unlisted links. However, Justice Milman found that Linkletter accessed Proctorio’s videos (and their links) via Proctorio’s website, which had its own terms of service to which Linkletter had clicked to agree. Those terms prohibit the copying or duplication of the materials found in their Help Centre – although they do not identify any of the content as confidential information. Canadian courts have found users of websites to be bound by terms of service regardless of whether they have read them; it is not a stretch to find that Linkletter had a contractual obligation not to share the contents. However, when it comes to taking the steps necessary to protect the confidentiality of information, one can question whether terms of service buried in links on a website – and that do not specifically identify the material as confidential – constitute a confidentiality or non-disclosure agreement. There was evidence that much of the material could be found elsewhere on the internet. It was also available to tens of thousands of instructors who were given access to the site at the discretion of university clients, not Proctorio. Justice Milman noted that “none of the videos stated on their face that they were commercially sensitive or should be kept from public view” (at para 64). He also found that “the choice to make them available on a public platform like YouTube when more secure options could have been used, dilutes the strength of Proctorio’s case” (at 64). In these circumstances, the court’s ruling that the confidential information claim had sufficient merit seems generous. In order to make out a claim of breach of confidence, it is also necessary for the plaintiff to show that the defendant made use of the information to the company’s detriment. Although the information was used to criticize the company, it is hard to see how Proctorio suffered any real damage particular to this breach of confidence. Much of the content was available through other sources, and the court described the company’s assertions that the videos could permit students to game their algorithms or could reveal their algorithmic secrets to competitors as ‘speculative’. Nonetheless, Justice Milman found enough here to satisfy the Proctorio’s onus to repel the PPPA application.

The copyright infringement argument depended upon a finding that the sharing of a hyperlink amounted to the sharing of the content that could be accessed by following the link. In spite of the fact that there is Canadian case law that suggests that sharing hyperlinks is not copyright infringement, Justice Milman was prepared to distinguish these cases. He found it significant that the materials were not publicly available except to those who had access to the links; sharing the links amounted to more than just pointing people to information otherwise available on the internet. Having found likely infringement, Justice Milman next considered available defences. He found that Linkletter did not meet the test for fair dealing as set out by the Supreme Court of Canada in CCH Canadian. It was conceded by Proctorio that Linkletter passed the first part of the fair dealing test – that the dealing was for a purpose listed in ss. 29, 29.1 or 29.2 of the Copyright Act. Presumably it was for the purposes of criticism or comment, although this is not made explicit in the decision. In assessing the fair dealing criteria, however, Justice Milman found that Linkletter’s circulation of the links on social media mitigated against fair dealing, as did the fact that anyone who followed the link had access to the full work.

On ‘alternatives to the dealing’, Justice Milman noted that rather than share the videos publicly, Linkletter could have reported on what he saw in the videos (although he earlier had found the videos (or the links to the videos – it is not entirely clear) to be confidential information). He could also have referred to other publicly available sources on the contents of the videos to make his point. On the issue of the nature of the work, Justice Milman found that the works were confidential (thus working against a finding of fair dealing) “even if most of the information in the videos was already available elsewhere on the internet”. Oddly, then, the fair dealing analysis not only underscores the fact that the material was largely publicly available, it suggests that an alternative to providing links to the videos was to discuss their contents freely. This suggests that the issue was not really the confidentiality of the content, but the fact that Linkletter had breached contractual terms of service in order to provide access to it.

On the final fair dealing criterion, the effect of the dealing on the work, Justice Milman found that by making the videos available through their links, “Mr. Linkletter created a risk that Proctorio’s product would be rendered less effective for its intended purposes (because students could more easily anticipate how instructors can configure the settings) and its proprietary information more readily available to competitors.” (at para 112). He conceded that this risk was ‘speculative’ given the amount of information about Proctorio’s services already in the public domain. Justice Milman found that, on balance, the fair dealing defence was not available to Linkletter. He also found that the defence of ‘user-generated content’ was not applicable.

Justice Milman declined to find that there had been circumvention of technical protection measures by Linkletter. He found that Linkletter had gained access to the materials by legitimate means. His subsequent copyright infringing acts were carried out without avoiding, bypassing, removing, deactivating or impairing any effective technology, device or component as required by s. 41.1 of the Copyright Act.

The final element of the test under the PPPA is that the interest of the plaintiff in carrying on with the action must outweigh its deleterious effects on expression and public participation. Justice Milman found that this test was met, notwithstanding the fact that he also found that the “corresponding harm that Proctorio has been able to demonstrate is limited” (at para 124). He found that the risks identified by Proctorio of students circumventing its technology or competitors learning how its software worked were “unlikely to materialize”. Nonetheless, he found that Linkletter’s actions “compromised the integrity of its Help Center and Academy screens, which were put in place in order to segregate the information made available to instructors and administrators from that intended for students and members of the public” (at para 126). He credited the interim injunction for limiting the adverse impacts in this regard. However, he was critical of the broad scope of that injunction and narrowed it to ensure that Linkletter was not enjoined from sharing or linking to content available from public sources. Justice Milman also noted that Linkletter remained free to express his views, as have been others who have also criticized Proctorio online.

The breach of copyright and breach of confidence claims in this case are weak, although their consideration is admittedly superficial given that this is not a decision on the merits. The court found just enough in the copyright and breach of confidence claims to keep them on the right side of the PPPA. Clearly Proctorio objects to the provision of direct public access to its instructional videos beyond the tens of thousands of instructors who have access to them each year – and who are apparently otherwise free to discuss their content in public fora. In this case, Proctorio quickly mitigated any harm by changing the links in question. It could also deny Linkletter access to its services on the basis that he breached the terms of use, and can better protect its content by no longer providing it on as unlisted content on YouTube. The narrowed injunction leaves Linkletter free to criticize Proctorio and to link to other publicly available information on the internet. In the circumstances, even if the underlying lawsuit is not a SLAPP suit, as Justice Milman concludes, it is hard to fathom why it should continue to consume scare judicial resources.