Photo by Kaitlyn Baker (Unsplash)

Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School. 

With the emergence of the pandemic, schools across the globe had to rapidly shift to new testing mechanisms in line with stay-at-home lockdown orders. Remote invigilation and AI software seemed like the tools to support instructors and prevent cheating on exams that were suddenly shifted online. However, the rise of companies like Proctorio were coupled with criticisms of fully-AI invigilation systems: student and educator concerns with privacy, heightened test anxiety, and racist and ableist algorithms quickly came to the forefront. Various student groups across North America penned open letters and petitions hoping to curtail the use of invasive remote proctoring software that tracks eye movements, facial expressions, spatial information, and more. Part 1 of this article series will discuss the background information pertaining to Proctorio, Incorporated v Linkletter, including how the lawsuit began.

On June 25, 2020 on the University of British Columbia (“UBC”) reddit forum, one post meant to spark laughter instead spiraled into a confrontation with the CEO of Proctorio, Mike Olsen. Under the username artfulhacker, Olsen responded to the criticisms of Proctorio by releasing confidential chat logs between the student and the support assistant. While the responses to Olsen are intact, Olsen’s reddit account has since been deleted, along with all his inflammatory comments.

Educator Ian Linkletter decided to stand up for the student. At the time, he was employed by UBC as a Learning Technology Specialist and Open Education Librarian. He had already been looking into Proctorio’s services when the incident occurred. He called Olsen out on Twitter and Reddit, tweeting out YouTube links to Proctorio’s various instructional videos describing aspects of the program. These were taken from Proctorio’s help website for instructors.

In September 2020, Proctorio filed a lawsuit against Linkletter for eight tweets of links to the unlisted videos and for posting a screenshot of the help website. Aligned with Linkletter’s belief in free speech and privacy concerns in the public interest, his entire defence can be found here.

Part 2 will look at the actual decision by Milman J. from March 25, 2022 and examine the comments on free speech and fair dealing for the purpose of criticism.