Class ac­tion cer­ti­fied against obit­u­ary web­site Af­ter­life

The Western Star - - FRONT PAGE - BY JUANITA MERCER

The class ac­tion law­suit against obit­u­ary web­site Af­ter­life is cer­ti­fied and could be clewed up by Christ­mas.

Ear­lier this year, peo­ple from across the coun­try ex­pressed out­rage when their de­ceased fam­ily mem­bers’ obit­u­ar­ies were posted on the Af­ter­life.co web­site with­out their per­mis­sion.

The web­site in­cluded op­tions for mourn­ers to pur­chase dig­i­tal “can­dles” or send flow­ers, thereby breach­ing copy­right law by prof­it­ing from obit­u­ar­ies writ­ten by other peo­ple, or pho­tos taken by other peo­ple.

The class ac­tion is spear­headed by St. John’s lawyer Erin Best. It as­serts the web­site and its founder, Paco Le­clerc, en­gaged in copy­right in­fringe­ment and in­fringe­ment of moral rights.

Peo­ple do not need to do any­thing to join the class ac­tion.

“If you’re a copy­right owner and your obit­u­ary and photo were used by the Af­ter­life web­site, then you’re au­to­mat­i­cally a mem­ber of the class,” said Best, who is a part­ner at St. John’sbased law firm Ste­wart McKelvey.

About a mil­lion Cana­di­ans are in­cluded in the class.

Any class mem­bers who wish to opt out of the pro­ceed­ings have un­til Oct. 1 to do so. The opt-out form is on the Ste­wart McKelvey web­site at www. stew­artm­ck­elvey.com un­der the ‘Class Ac­tions’ tab.

Mean­while, Best said the Af­ter­life re­spon­dents ini­tially hired a lawyer who was re­spond­ing, but they since can­celled the re­tainer with that lawyer. Le­clerc was com­mu­ni­cat­ing with Best’s team un­til the certificat­ion mo­tion was filed, at which point Best said “he in­di­cated that he was not go­ing to be re­spond­ing.”

The certificat­ion mo­tion went through un­con­tested.

Once the opt-out process con­cludes, Best will move for­ward with sub­stan­tive ac­tion – also likely un­con­tested – and then wait for a judge­ment.

“We might have some­thing by Christ­mas, it’s pos­si­ble. If not, prob­a­bly early in the new year.”

It’s un­likely class mem­bers will re­ceive any money.

“We’ve got a mil­lion peo­ple in the class be­cause that’s how many obit­u­ar­ies were up on the site in Canada and this com­pany doesn’t even have a mil­lion dol­lars,” said Best.

She said what­ever they end up re­cov­er­ing from Af­ter­life would per­haps only work out to be about 20 cents for each class mem­ber.

“Our plan is to make an ap­pli­ca­tion to the court to do­nate the money – what­ever we re­cover – to a rel­e­vant char­ity.”

St. John’s res­i­dent Ge­orge Mur­phy has been out­spo­ken about Af­ter­life’s use of his mother’s obit­u­ary.

He said he’s happy the case will likely be re­solved by the end of the year, but he ques­tions why the Com­pe­ti­tion Bu­reau hasn’t taken ac­tion against other web­sites that are sim­i­lar to Af­ter­life.

“Some­thing has to be done to ad­dress that par­tic­u­lar fact that some­body’s mak­ing money off death, you know, past the fam­ily’s wishes.”

Mur­phy said he filed a com­plaint with the Com­pe­ti­tion Bu­reau but hasn’t heard any­thing from the agency.

Best said the class ac­tion deals only with copy­right in­fringe­ment and in­fringe­ment of moral rights.

She said there is noth­ing that she is aware of to pre­vent a web­site from post­ing the ba­sic facts of a death along with the op­tion to pur­chase items such as flow­ers.

“It is in­her­ently of­fen­sive to peo­ple, but in a le­gal sense it’s akin to the phone­book where it’s a fact and then you have some or­ga­ni­za­tion of these facts, and there’s some ad­ver­tis­ing that ap­pears on that.”

It ap­pears Le­clerc is now do­ing just that.

The Af­ter­life.co web­site no longer ex­ists, but the ad­dress redi­rects to a new obit­u­ary web­site called Ever­here.

Le­clerc’s LinkedIn pro­file states he is the CEO of Ever­here.com ef­fec­tive Fe­bru­ary 2018, shortly af­ter a class ac­tion was served on Af­ter­life in Jan­uary.

The Ever­here web­site lists de­tails re­lated to re­cent deaths but does not ap­pear to di­rectly copy and paste obit­u­ar­ies and pho­tos the way Af­ter­life did.

Ever­here con­tin­ues to in­clude op­tions to send flow­ers or pur­chase a dig­i­tal can­dle.

Best said if the class ac­tion gets a judge­ment in their favour – “which is what we’re ex­pect­ing”—it will set a prece­dent for obit­u­ary web­sites in how they deal with the obit­u­ar­ies.

“They’ll all ei­ther have to change what they do to con­form to the law as it’s clar­i­fied by our de­ci­sion, or else you can es­sen­tially bring them to court very quickly and get a judge­ment against them quickly be­cause the court has al­ready con­sid­ered the mat­ter,” she said.

“They won’t be able to in­fringe copy­right in the way Af­ter­life has in­fringed copy­right.”

Dig­i­tal can­dles were sold on Af­ter­life.co’s web­site next to each obit­u­ary. That web­site now redi­rects to a revamped ver­sion called Ever­here, where mourn­ers are still of­fered the op­tion to send flow­ers or pur­chase dig­i­tal can­dles.

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