Could Canadian IP Law Benefit from Anti-SLAPP Legislation?

This term I am taking another IP course with Professor Reynolds about the intersection between IP and human rights. I decided to write my final paper on how enacting Anti-SLAPP legislation at the federal level could bolster users’ rights (framed as free expression rights as well as IP rights) and the doctrine of fair dealing in Canadian IP law. I felt this topic applied well to what we are currently learning about users’ rights and fair dealing, so as my essay submission for this course, below I have provided an overview of what my paper will explore in more detail.

In 1704604 Ontario Ltd v. Pointes Protection Association the SCC defined strategic lawsuits against public participation (“SLAPPs”) as follows:

SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.^[1]

A few months prior to the Cooperstock^[2] decision in 2017, United Airlines (“United”) made headlines after a passenger was injured while being forcibly removed off a plane after refusing to give up their seat on an overbooked flight.^[3] As it turns out, in previous years United also allegedly broke a musician’s $3500 guitar, later put the customer through a long game of telephone with various United employees, and ultimately provided the customer with a whopping zero dollars compensation.^[4] The airline was also accused of losing a 10-year-old child who was flying to a summer camp alone under their care, despite the child apparently repeatedly asking various employees for help.^[5]

Jeremy Cooperstock (“Mr. Cooperstock”) was yet another unhappy United customer. Although United did not lose his child or break his $3500 guitar, Mr. Cooperstock did have a poor flying experience.

In 1996, Mr. Cooperstock outlined his negative experience with United and their subsequent lack of response to his customer complaint on his personal internet webpage.^[6] Other travellers began contacting Mr. Cooperstock about common negative experiences they also had with United, and the website evolved into a consumer criticism webpage called “UNTIED.com”.^[7] UNTIED.com, poked fun at the word “United”, criticized United’s treatment of its customers, and provided site visitors with information on how to possibly resolve travel disputes with the company. Admittedly, some of the methods the site used to resolve said disputes may have been questionable from a privacy standpoint.^[8] However, in fairness to Mr. Cooperstock, arguably United’s treatment of its customers was also very questionable in many different circumstances.

Mr. Cooperstock ran his website for a number of years without any legal action from United. Shortly after United’s merger with Continental Airlines, and shortly after Mr. Cooperstock designed the website into the UNTIED.com version using a parody logo of the United logo, United sued Mr. Cooperstock in Quebec Supreme Court and Federal Court. In the Supreme Court action United sought an injunction related to the publishing of personal information of certain United employees that Mr. Cooperstock had posted to the website.^[9] The Federal Court action alleged infringement of United’s intellectual property rights by Mr. Cooperstock, both in copyright and trademark.^[10]

At the time, Quebec had Anti-SLAPP legislation in place to protect against lawsuits meant to intimate or harass individuals who spoke out against plaintiffs. If a defendant can show that a suit qualifies as a SLAPP, Anti-SLAPP legislation grants courts the power to dismiss the proceedings at a preliminary stage, avoiding high legal fees and the stress of unnecessary litigation for the defendant.^[11] Navigating these proceedings as a self-represented litigant, Mr. Cooperstock tried to get the non-IP law suit dismissed as a SLAPP.^[12] However, after a long, complex, and frankly confusing procedural journey, Mr. Cooperstock was ultimately unsuccessful, the Quebec court action was not considered a SLAPP and United’s injunction was granted.^[13]

In the Federal Court action, Justice Phelan held that on the copyright ground, while Mr. Cooperstock’s use of United’s copyrighted material fell under the meaning of parody^[14], it did not make out the test for fair dealing.^[15] Justice Phelan held that the questionable purpose of the dealing (which somewhat paradoxically was noted by Justice Phelan to be to defame or punish the plaintiff, and not to engage in parody…), the amount of the dealing, and the effect of the dealing all weighed against a finding of fair dealing.^[16]

In terms of trademark, Justice Phelan held that Mr. Cooperstock infringed on United’s trademarks by using confusingly similar marks in association with flight related customer services, and misled visitors of UNTIED.com website as to whether the site was United’s actual site or not.^[17] If you are curious about the site in question, here is an archived version: Archived UNITED.com website.

Although I cannot delve deeply into the facts of the case here, when I read the IP related decision for the first time, it became increasingly apparent to me that United’s IP lawsuit against Mr. Cooperstock was likely a SLAPP. Once I started to research more about United’s historical treatment of its customers, the timing of pursuing the law suit made a lot more sense.^[18] I also found it particularly interesting that as far as I can tell, United did not pursue any claims in defamation against Mr. Cooperstock. One can only speculate why this may have been the case, such as Mr. Cooperstock likely having valid defences to such a claim.

Of course, as mentioned earlier, some of Mr. Cooperstock’s methods of criticizing are certainly up for debate. In fact, this may explain the Quebec court’s decision against the finding of a SLAPP. However, his right to free expression (however questionable it may have been at times) should not be. This is why each allegation of a SLAPP should be considered and analyzed case by case and in a nuanced manner. This rings particularly poignant when we consider the SCC’s statements in R. v. Guignard on the social value of “counter-advertising” :

[…] consumers also have freedom of expression. This sometimes takes the form of “counter-advertising” to criticize a product or make negative comments about the services supplied. Within limits prescribed by the legal principles relating to defamation, every consumer enjoys this right. Consumers may express their frustration or disappointment with a product or service. Their freedom of expression in this respect is not limited to private communications intended solely for the vendor or supplier of the service. Consumers may share their concerns, worries or even anger with other consumers and try to warn them against the practices of a business. Given the tremendous importance of economic activity in our society, a consumer’s “counter‑advertising” assists in circulating information and protecting the interests of society just as much as does advertising or certain forms of political expression. This type of communication may be of considerable social importance, even beyond the merely commercial sphere.^[19]

Counter-advertising could also be framed as a form of users’ right under Canadian IP law, which undoubtedly has immense social value. This brought me to wonder if the Federal Court’s decision against Mr. Cooperstock would have been any different if he had the benefit of Anti-SLAPP legislation in the IP law suit. Regardless, in my paper I will argue that having this federal Anti-SLAPP legislation could strengthen the application of users’ rights and fair dealing in Canada. Maybe in Mr. Cooperstock’s case it would not have changed the ultimate result, but I do think his case is demonstrative of the very real risk that IP law could become more commonly used a sword to silence free expression.

Thanks for reading if you made it this far!

Kaja

^[1] 1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at para 2.

^[2] United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII) [Cooperstock].

^[3] BBC News article about United customer getting physically removed.

^[4] United allegedly breaks a guitar.

^[5] United allegedly loses a child.

^[6] United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII) at para 7.

^[7] United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII) at para 7; Archived UNITED.com website.

^[8] United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII) at para 14.

^[9] United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII) at para 14.

^[10] United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII).