Can Sharing A Hyperlink Be Considered Copyright Infringement? Still TBD

• Published date: 28 March 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Copyright, Trials & Appeals & Compensation
• Law Firm: Clark Wilson LLP
• Author: Mr Michal Jaworski

On March 11, 2022, the BC Supreme Court released its decision in Proctorio, Incorporated v Linkletter, 2022 BCSC 400 (CanLII), and it may mislead some to think that it is authority for the proposition that you need the copyright owners' permission to share a hyperlink to their content.

What happened here? Mr. Linkletter, a Learning Technology Specialist employed at UBC, tweeted out a screenshot to a webpage that was password protected, and hyperlinks to unlisted videos posted to Proctorio's YouTube channel. Unlisted videos are accessible only to those with a link to that video-they cannot be found by searching on YouTube or on a search engine. so they're, to a degree, private. Proctorio sued Mr. Linkletter, claiming, amongst other things, that he infringed Proctorio's copyright by tweeting out the hyperlinks. The Court agreed that, in this particular instance, Proctorio's claim is legally tenable, and that there are grounds to believe that Mr. Linkletter did not have a defence to them.

This article will not delve into copyright law and the centrality of hyperlinks to the practical functioning and utility of the Internet. Why not? Because that's not what the Court did either.

Why? Because the decision is not, at heart, about copyright infringement or any of the other claims against Mr. Linkletter. The decision is about something broader: whether Proctorio should even be allowed to pursue its claim against Mr. Linkletter because it is actually a SLAPP-a strategic lawsuit against public participation (in other words, a suit aimed at stopping people from criticizing Proctorio publicly).

As in many other provinces, there is a law in B.C. called the Protection of Public Participation Act that allows anyone who is being sued as a result of an expression on a matter of public interest to apply to dismiss the action because the lawsuit is actually a SLAPP. An anti-SLAPP application requires the Court to determine whether claims brought have "substantial merit", whether the person being sued has a "valid defense", and whether the harms suffered (here, by Proctorio) are sufficiently serious to outweigh the public interest in the defendant's (here, Mr. Linkletter) public expression.

However, to emphasize, the Court is not meant to fully consider each allegation. Rather, it must conduct "an assessment of the likelihood of a successful claim", and determine whether it is "legally tenable". This makes sense, because requiring a full consideration on the merits would...