Class action certified against obituary website Afterlife
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.