Canadian privacy advocate deploys anti-SLAPP law in suit by electronic exam proctoring company

John Oliver's Big Coal SLAPP nemesis, Bob Murray, retires

Pixabay by Aksa2011

An IT specialist at a Canadian university is defending a lawsuit against a U.S. tech company over its allegations of copyright infringement and his allegations of infringement of student privacy.

Proctorio is an Arizona-based company offering online testing to academic institutions.  It's similar to ExamSoft, which is used by my law school, the Massachusetts Bar, and other academic and licensing organizations.

Needless to say, businesses in the mold of Proctorio and ExamSoft have taken off since the pandemic.  But these businesses are not without their problems, and their widespread use has brought unwanted scrutiny to their terms of service.

For example, the Electronic Frontier Foundation raised a red flag over ExamSoft in anticipation of its adoption to administer the California bar exam.  Examsoft's terms of service afford the company overbroad reach into the computers of users and, worse, collection of biometric data from studying their faces on screen.  My students have raised legitimate concerns about ExamSoft, and I will not be administering a "closed-book" final exam because I share those concerns.

UBC (GoToVan CC BY 2.0)

Related privacy worries motivated University of British Columbia learning technology specialist Ian Linkletter, MLIS, to tweet out the URLs of unlisted Proctorio instructional videos located at YouTube, meaning to make his case that the company is excessively intrusive of student privacy.  In response, the company sued Linkletter in British Columbia for copyright infringement and breach of confidence.

Now Linkletter has filed for dismissal under British Columbia's anti-SLAPP law.  Linkletter told the Vancouver Sun that fighting the lawsuit for just "more than a month has cost him and his wife tens out thousands of dollars."  Read more in Linkletter's public statement of October 16.

B.C.'s anti-SLAPP law was enacted unanimously by lawmakers in March 2019.  Oddly enough, B.C. lawmakers passed one of Canada's first anti-SLAPP laws in 2001, but quickly repealed it over doubts about its efficacy.  I wrote recently about the dark side of anti-SLAPP laws.  Never have I denied that they are sometimes deployed consistently with their laudable aims; rather, my concerns derive from their ready abuse when deployed against meritorious defamation and privacy causes.   

The case is Proctorio, Inc. v. Linkletter, Vancouver Reg. No. S-208730 (filed B.C. Sup. Ct. Sept. 20, 2020) (civil claim).

Bye, bye, Bob

[UPDATE, Oct. 27, 2020. To be clear, I wrote that sub-headline before this happened: "Coal giant Robert Murray passes away just days after announcing retirement" (Stephanie Grindley, WBOY, Oct. 25, 2020).]

In other, if distantly related, anti-SLAPP news, Bob Murray is resigning and retiring as board chairman of American Consolidated Natural Resource Holdings Inc., successor of Big Coal's Murray Energy.  It was a tangle with Murray that turned HBO comedian John Oliver into an anti-SLAPP champion.  And, I admit again, HBO's use of anti-SLAPP law was textbook and laudable after Murray brought a groundless suit against the network.

While I disagree with Oliver over anti-SLAPP, he's one of my favorite comedians and social activists, and definitely was the mic-drop-best live act I've ever seen.  Here are his key Murray Energy treatments from Last Week Tonight.

The first, June 18, 2017, drew Murray's lawsuit.

The second, November 10, 2019, followed up with a paean to anti-SLAPP, wrapping up with a musical tribute to Murray.

Info reg round-up: French feud, global injunction, foreign discovery, and literal grains of paradise

I've lately been swamped by developments in global information regulation.  Here's a round-up of highlights with links to read more.

Google-France feud.  Fresh on the heels of Google v. CNIL (read more), tensions are heating up again between Google and France, as Google refuses to play ball with France's new copyright law.  The 2019 EU Directive on Copyright in the Digital Single Market aimed, inter alia, to protect publishers from the scraping of their news product for aggregators' clips and snippets without compensation.  France was the first country, and only so far, to transpose the directive's article 15 (né draft article 11) into national law.  Effective this month, the French law would compel an aggregator such as Google to pay news publishers for the content that appears in Google search results.  How much money Google makes from Google News is disputed, but it's a lot.  Google contends that news providers are well compensated by traffic driven to their websites.  The news industry doesn't feel that way and blames aggregators for killing the business model of news, public interest journalism along with it.  Now Google has said that search results in France will exclude content that would require payment under the new copyright law.  The News Media Alliance, a U.S. industry association, has called Google's move "extortion."

Eva Glawischnig-Piesczek, Austrian Green

EU: Global injunction of one country's "defamation."  The European Union (EU) continues to amp up internet service provider (ISP) accountability.  A chamber of the Court of Justice of the EU (CJEU) ruled that European law—including EU information market directive, the Treaty on the Functioning of the EU, and the freedom of expression—does not preclude a member state from issuing a global injunction to take down unlawful content.

The facts reveal the problematic scope of the state power implicated, as the case arose from a Facebook post disparaging, e.g., "traitor," an Austrian politician.  The disparagement was regarded as defamation in the Austrian courts, but would be protected as core political commentary or hyperbolic opinion in the United States and many other countries.  The prospect of a state order with global reach was raised by the recent CJEU decision in Google v. CNIL.  Slate's take took no prisoners: "In so ruling, the court demonstrated a shocking ignorance of the technology involved and set the stage for the most censor-prone country to set global speech rules."

The case is Glawischnig-Piesczek v. Facebook Ireland Ltd., No. C-18/18 (Oct. 3, 2019).

US: Extraterritorial discovery.  The Second Circuit meanwhile published an opinion that pushes outward against the territorial bounds of U.S. law.  The court ruled that statutory civil procedure under 28 U.S.C. § 1782 may reach records held outside the United States and is co-extensive in scope with the maximum long-arm personal jurisdiction of constitutional due process.

The case arose from Banco Santander's acquisition of Banco Popular Español (BPE) after a criminal investigation and government-forced sale of the latter.  Mexican nationals and investors opposing the acquisition sought discovery in the U.S. District Court in New York against Santander and its New York-based affiliate, Santander Investment Securities (SIS), under § 1782.  The law compels discovery against a person or legal entity that "resides or is found" in the U.S. jurisdiction.

Santander New York (© Google Earth)

The court rejected Santander's contention, supported by academic opinion, that the language could not reach a mere "sojourner" in the jurisdiction.  The court furthermore held that the presumption against extraterritoriality of statutory interpretation does not apply to a jurisdictional statute, and even if it did, the design of the Federal Rules of Civil Procedure, with which the statute fits, plainly and expressly encompasses extraterritorial reach.

However, the court held, only SIS, not Santander, was within the reach of long-arm personal jurisdiction.  SIS was subject to general jurisdiction, but was not meaningfully involved in the BPE acquisition.  Santander had hired New York consultants to contemplate an acquisition of BPE, which could subject Santander to specific jurisdiction, but that was an entirely different transaction, prior to the government-forced sale of BPE.

Though the case deals with conventional discovery, it has important implications for transnational business in the age of e-discovery.  Expansive U.S. discovery practice is incompatible with more restrictive norms in much of the world, Europe included.  Section 1782 is a potentially powerful tool for savvy litigants to get their hands on opponents' materials when foreign courts won't allow it.  That's bound to rub transnational business and foreign regulators the wrong way.

The case is In re Del Valle Ruiz, No. 18-3226 (2d Cir. Oct. 7, 2019).  Hat tip to New York attorney Ken Rashbaum, at Barton LLP, who telephonically visited my Comparative Law class and referenced the case, and will be writing more about it soon. 

Gin labeling and grains of paradise.  OK, this is more about misinformation than information, and it is globally important.  Law and gin, two great international cultural forces and loves of my life, come together in a recently filed lawsuit over grains of paradise.  You can't make up stuff this dry yet thirst-quenching.

Bombay Sapphire Bottle (by @Justintoxicate)

In a class-action complaint removed to the U.S. Southern District of Florida in mid-September, plaintiffs accuse Bacardi USA, maker of Bombay Sapphire Gin, and Winn-Dixie supermarkets of selling "adulterated" product, because Bombay gin contains a botanical literally called "grains of paradise."  According to the complaint, grains of paradise, scientific name Aframomum melegueta, "is an herbaceous perennial plant native to swampy habitats along the West African coast."  Turns out, it's illegal under Florida law, section 562.455.

The ABA Journal explained: "The 150-year-old Florida law was passed when people thought grains of paradise was a poisonous drug. The misconception likely arose when home distillers added other, dangerous ingredients to gin to 'mask the awful distilling and make more money,' according to Olivier Ward, a British gin expert and consultant who spoke with the Miami Herald."  Bacardi is not hiding anything and maintains that its products comply with all health and safety regulations.  The complaint itself states that grains of paradise are listed in the ingredients and actually etched on the gin's blue bottle.

The case is Marrache v. Bacardi, U.S.A., Inc., No. 1:19-cv-23856 (S.D. Fla. docketed Sept. 16, 2019).

Design Patent Infringement Needs a Free Expression Defense / La infracción de patentes de diseño necesita una defensa de libre expresión

From 2017:1 Juriste International magazine, available online now from the Union Internationale des Avocats.  Download issue 2017-1 here and find the whole article at page 44. Download the full research article on this subject here.

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Design Patent Infringement Needs a Free Expression Defense
/La infracción de patentes de diseño necesita una defensa de libre expresión 

Richard J. Peltz-Steele & Ralph D. Clifford

As elsewhere in the world, design patents are propagating copiously in U.S. intellectual property law. Notwithstanding their fertility, design patents face potentially prohibitive and as yet unexplored legal challenges. One possibility is that the U.S. Congress might lack the very power to authorize design patents. Another possibility – our subject here, with implications for design patents in Europe and around the world – is that design patents violate fundamental rights if there is not a defense to infringement founded in the freedom of expression.

Las patentes de diseño se propagan en abundancia en el derecho de la propiedad intelectual. Mientras tanto, las patentes de diseño enfrentan desafíos legales aún inexplorados. Enfocándose en la ley estadounidense, este artículo postula que las patentes de diseño violan los derechos fundamentales si no hay una defensa a la infracción fundada en la libertad de expresión. Diseño es único entre las patentes debido a su capacidad expresiva. Por lo tanto, debe acomodarse a la libertad de expresión con defensa de uso o trato justo, comparable a la ley de los derechos de autor.

Digital forgetting in America

Yesterday I spoke on a panel at the annual conference of the National Communication Association (NCA) on “the right to be forgotten,” or “right to erasure,” in data protection law. 

RTBF is a way for someone to get unwanted Internet content taken down, or at least de-listed, or de-indexed, from search results, because the content causes the person injury.  RTBF is regarded in Europe as a function of the human right to data protection, an outgrowth of the fundamental right to privacy in European law.  The history of the right is now well documented online for the reader of every interest level, so I won’t belabor it here.  Suffice to say that a landmark moment came in the case of Mario Costeja González in the European Court of Justice in 2014 (Wikipedia; the case in English).  He had complained about the online publication of an archived 1998 newspaper report of a debt.  The court sided with the Spanish Data Protection Authority in ordering Google Spain to de-index the report from search results.

The Costeja case rattled media on the American side of the Atlantic, who raised the alarm about a threat to the freedom of expression.  U.S. law has always been a problematic analog to European privacy law.  The disparity stems from a basic, initial problem, which is that the only place our Constitution plainly recognizes privacy law is in the Fourth Amendment right against unreasonable searches and seizures.  To the dismay of constitutional textualists, the U.S. Supreme Court has sometimes located a right of privacy in various other provisions, as well as in their “penumbras and emanations” (Griswold v. Conn., 381 U.S. 479, 484 (1965) (LII)).  But at the end of the day, our constitutional notion of a privacy right has remained largely constrained by the state action doctrine, meaning the right restrains only governmental power, not the private operators of search engines and newspaper archives. When statutory or common law privacy collides with the free speech rights of online publishers, the constitutional imperative prevails.

Meanwhile RTBF has been recognized explicitly in the General Data Protection Regulation (GDPR) of the European Union.  The doctrine has spawned its own body of administrative and case law in European national courts, some of it tied more to the human right of privacy than to the GDPR.  RTBF court rulings have spawned a labor-intensive takedown request service within Google.  The courts and the Internet giant are sparring now over whether search engines can be compelled to de-index websites worldwide or only in national iterations of the service (e.g., google.fr for France).  Scholars are looking hard at whether there should be a legal difference between a search engine and a primary information provider, such as a newspaper, in the area of Internet intermediary liability.   RTBF was a sore point in the trans-Atlantic negotiation over the data protection Privacy Shield agreement, and still key details remain to be worked out in implementation.  And RTBF and its balance with free expression remains a point of debate around the world as countries such as Brazil look to overhaul and update their data protection and privacy laws.

I made the moral case for RTBF in a Washington Post op-ed two years ago, so I won’t reiterate that here.  I’ve since been looking into the law of RTBF in the United States.  Saturday I reported my belief that the First Amendment hurdles are surmountable.  

To give just the flavor of that presentation, take for example the prior restraint doctrine in U.S. First Amendment law.  The prior restraint doctrine essentially forbids restraints on free expression backed by government power prior to adjudication of the expression as unlawful.  One need look no farther than the vigorous notice and takedown (N&TD) regime of the Digital Millennium Copyright Act (DMCA) to see that the prior restraint doctrine is a manageable problem.  To be clear, I’m on record agreeing with those who think that DMCA N&TD has gotten out of control and needs to be reined in, not to mention that the underlying scope of copyright protection is excessive.  But the analogy holds.  When nude celebrity photos of the likes of Jennifer Lawrence were leaked online, the remedy employed by some—for the rabidly popular Lawrence, it wasn’t possible—to recall their images from circulation was copyright N&TD, rather than tortious invasion of privacy.  It makes no sense to compel the use of intellectual property law to remedy what is plainly a privacy problem.  Tort law is up to the job.  Moreover, I see a clear and constitutional path to injunctive remedies for privacy torts, better than for ill-fitting copyright infringements.

I am also engaging the idea that in this age of information commodification, the provision of information is sometimes more a commercial enterprise than an expressive enterprise.  Certainly that's the case for data brokers, such as Acxiom.  Researchers such as Nikolas Ott and Hugo Zylberberg in the Kennedy School Review have described the commercial value of the wash of data that our appliances will generate in the Internet of Things era.  A Spanish court in an RTBF case against the newspaper El País held that the newspaper's online publication of archives was a commercial act rather than a journalistic one.  Commercial communication is protected by the First Amendment, but to a much lesser extent than is political or artistic expression.

I am grateful to Dr. Kyu Ho Youm, the John Marshall First Amendment chair at the University of Oregon School of Journalism and Communication, who invited me to be a part of the NCA program that he designed and proposed.  I am also indebted for thought-provoking reflection to my co-panelists: Dr. Ed Carter, professor and director of the School of Communication at Brigham Young University; Dr. Stefan Kulk, a researcher at the Centre for Intellectual Property Law of Utrecht University in the Netherlands; and Dr. Ahran Park, a senior researcher for the Korea Press Foundation in South Korea.