Class action for breach of copyright over obituaries and attached photos successful at Federal Court

In Thomson v. Afterlife Network Inc., Thomson was the representative plaintiff in a class action claiming that obituaries and photographs authored and taken by Thomson (and others in the class) that had been posted online to various funeral homes and newspapers, were taken from the internet without permission and reproduced by Afterlife for profit. The suit alleged copyright infringement and infringement of moral rights of the members of the class, as the Terms of Service on Afterlife’s website stated that Afterlife owned the copyright in the website contents. 

Thomson’s father passed away in January 2017, at which point she authored an obituary that, along with a photo of her father, was published by a funeral home with her permission. A year later she discovered that Afterlife displayed the obituary and photograph on their website, without her permission, and provided options to buy flowers and virtual candles. Thomson submits that Afterlife caused viewers of their website to believe she had consented to the use of her father’s obituary and image, and to believe that she would profit from sales. 

Afterlife’s solicitor withdrew and Afterlife did not participate in the proceedings, having shut down its website one month after the class proceeding was certified. Traffic had been redirected to a similar website, with template rather than identical obituaries. 

The court found, on the basis of CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, that the obituaries and photographs were original works in which the author, here Thomson, possessed copyright, and that Afterlife’s actions constituted copyright infringement since it had reproduced the original works without permission. As to the moral rights claim, the court invoked Maltz v. Witterick, 2016 FC 524, which held that “an author’s right to the integrity of a work includes not only a highly substantive aspect, which the author of the work must establish, but also an objective element requiring evaluation of the prejudice to that author’s honour or reputation based on public or expert opinion.” The court found that while Thomson was sincere that her honour and reputation were prejudiced, no objective evidence of such was provided, and therefore the court was unable to make a determination as to prejudice. 

The FC awarded aggregate damages of CA$10 million, and aggravated damages of CA$10 million across 2 million instances of infringement. The aggravated damages were granted due to the court’s finding that Afterlife’s conduct was high-handed and had significant impact on the members of the class.

(with a contribution from Daniel Roth)