Can You Share Unlisted YouTube Videos Without Permission? A BC Court of Appeal Says No

While there’s no final decision in this case, Linkletter v. Proctorio, Incorporated, the Supreme Court of Canada didn’t want to hear the case at this point.

If you have ever used YouTube, you may have noticed that some videos are unlisted, meaning they are not searchable or visible to the public, but can be accessed by anyone who has the link1. You may have also wondered if you can share those links with others without the permission of the video owner. Well, a recent decision from the Court of Appeal for British Columbia suggests that you may be in trouble if you do.

The case involved a software company called Proctorio, which provides a product that monitors students taking exams online2. Proctorio had posted some instructional videos on YouTube for instructors and administrators who use its software. The videos were unlisted, and the links were only available on Proctorio’s online platform, which required users to accept its terms of service that included a confidentiality clause.

A learning technology specialist at the University of British Columbia, Ian Linkletter, was critical of Proctorio’s software and its CEO3. He accessed the videos through Proctorio’s platform and then shared the links on Twitter, along with his negative comments about the software. Proctorio sued him for breach of confidence and copyright infringement, and obtained an interim injunction to stop him from sharing the links.

Linkletter applied to have the lawsuit dismissed under the Protection of Public Participation Act, a provincial law that aims to prevent strategic litigation that silences expression on matters of public interest4. He argued that his tweets were part of a public debate about the use of surveillance software in education, and that he did not breach any confidentiality or copyright obligations by sharing the links.

The court disagreed and refused to dismiss the lawsuit. It found that there were grounds to believe that Proctorio’s claims had substantial merit and that Linkletter had no valid defence5. It also found that the harm caused by Linkletter’s tweets to Proctorio outweighed the public interest in protecting his expression6.

The court held that the videos and the links had a necessary quality of confidentiality, as they were not readily available to the public and Proctorio had taken steps to keep them secret. It also held that Linkletter had accepted the terms of service that imposed an obligation of confidence on him, and that he was aware of the intended confidentiality of the videos. Moreover, it held that Linkletter’s sharing of the links caused detriment to Proctorio, as it undermined the virtual barrier that Proctorio relied on to segregate the information for instructors and administrators from that for students and the public7.

The court also held that Linkletter’s sharing of the links could amount to a breach of copyright, as it was not merely a reference to a publicly available work, but a publication of the work without the owner’s authorization. It rejected Linkletter’s argument that Proctorio had granted a license to anyone with the links to share them under YouTube’s terms of service, finding that those terms did not override Linkletter’s obligation to keep the links confidential8.

Finally, the court held that Linkletter did not have a public interest disclosure defence, as he did not have to share the links in order to express his views on Proctorio’s software. It also held that the public interest in continuing the lawsuit was greater than the public interest in protecting Linkletter’s expression, given the limited harm to Proctorio and the limited public interest in his tweets.

This decision is significant because it shows that unlisted YouTube videos and their links may still be protected by confidentiality and copyright laws, and that sharing them without permission may expose you to legal liability. It also shows that the Protection of Public Participation Act does not shield expressions that are not necessary for a public debate and that cause serious harm to the plaintiff.

If you are interested in reading the full decision, you can find it here: Linkletter v. Proctorio, Incorporated, 2023 BCCA 160 (CanLII)910

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