Today I bring news. You may recall from my last update that the BC Court of Appeal dismissed my appeal. I have just filed an application with the Supreme Court of Canada (SCC) for leave to hear my case. By applying for leave of the SCC, we aim to have the country’s highest court reexamine my Protection of Public Participation Act application and dismiss Proctorio’s lawsuit.
I encourage you to read our application, which can be found here: https://drive.google.com/file/d/17jEXWrbViJoxY4C3KGcx01JUfAnMt69x/view?usp=drive_link
I have also uploaded it to https://appeal.linkletter.org, which I will keep updated with my filings.
Though only a small percentage of cases make it to the SCC, I believe mine carries weight. It’s more than just my fight. It involves issues of public importance that could shape every Canadian’s freedom of expression. Here are a few questions that I believe we need the SCC to decide.
Question #1: Is sharing a link to a video hosted on a video-sharing website copyright infringement? Of course not! A link is not a copy, it is a reference to where something can be located online. What would the Internet be without links? A finding that a link can be copyright infringement would have disastrous consequences for the free exchange of information. It undermines the principle of technological neutrality that the SCC has previously held is fundamental to the interpretation of the Copyright Act. Our freedom to link is in serious peril.
Question #2: Can it be a breach of confidence to share information that is widely available via a simple Google or YouTube search? It better not, as it would jeopardize the ability of journalists, scholars, and members of the public to conduct research and share what they find out. If information isn’t confidential, there can be no breach of confidence, and Proctorio’s “confidential” information remains all over the Internet. If one can be sued for sharing publicly available information, it could severely curtail expression on matters of public interest. Turning the act of writing a bibliography into a legal risk would be a big step backwards for academic integrity. Press freedom would be similarly undercut. If someone has found proof of AI harming vulnerable people, they should not be afraid to share it.
Question #3: Can a lawsuit with absolutely no evidence of harm survive an anti-SLAPP application? In Proctorio’s claim, they theorized that because of my tweets, students could learn how their AI surveillance software works. If students knew how their academic surveillance software works, they argued, it wouldn’t be effective. That’s not harm, that’s a faulty product, and Proctorio provided no actual evidence of harm of any kind. Proctorio’s lawsuit should have been dismissed because the SCC’s interpretation of the Protection of Public Participation Act requires evidence of serious harm, and there was none.
This question, whether a lawsuit can continue in the absence of any harm, was recently addressed by the SCC in the landmark case Hansman vs. Neufeld. In that case, Glen Hansman expressed “counter-speech” against transphobic statements made by Barry Neufeld. He was sued for defamation, but Neufeld had not provided evidence of harm, and last month the SCC found in Mr. Hansman’s favour. A summary of the case can be found on the SCC’s website: https://www.scc-csc.ca/case-dossier/cb/2023/39796-eng.pdf. Had this judgment been released sooner, it could have changed the outcome of my appeal. We’ll never know, but what I do know is that Glen Hansman is a hero. He stood up for vulnerable students and it cost him 4 years in court. I know what that’s like — it has now been over 1000 days since Proctorio sued me. It is an unfortunate fact that in British Columbia, the BC Court of Appeal has never allowed a lawsuit to be dismissed under the Protection of Public Participation Act. The SCC has now corrected this in one case, and I hope it will in mine too.
From the very first day, I knew that this lawsuit was dangerous. This SLAPP was the first of its kind, and I wanted it to be the last. In BC, we have an anti-SLAPP law that was supposed to protect me, but it hasn’t yet. The Protection of Public Participation Act has failed so far, but the SCC has an opportunity to set things right. The SCC can clarify whether a link can be copyright infringement, whether public information can be considered confidential, and whether a lawsuit with no evidence of any harm can continue. There’s a lot at stake beyond my personal circumstances: it’s in the public interest for my application to succeed. Even if I don’t win at the SCC level, it is crucial that they answer these questions before more SLAPPs can be filed.
Applications for leave of the Supreme Court of Canada are considered via written submissions. It will take a few months for Proctorio and any interveners to respond. Then it will take a couple more months for the SCC to make a judgment on whether to hear the case. I hope to know by the end of the year, and will keep posting updates here and on Twitter.
Again, you can read our written submissions at: https://drive.google.com/file/d/17jEXWrbViJoxY4C3KGcx01JUfAnMt69x/view?usp=drive_link
In the face of this punishing lawsuit, I am beyond grateful for the unwavering dedication of my brilliant team of lawyers, whose expertise and passion are truly awe-inspiring. To my family, whose steadfast support and belief in my cause have given me the courage to persevere, my appreciation knows no bounds. Finally, to my loving wife, who has been my rock throughout this trying time, providing comfort, love, and endless patience, I owe an immeasurable debt of gratitude.
Thank you too, for supporting me. This could be the start of something big.