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N.L. lawyer files class-action lawsuit against controversial obituary website

A website publishing obituaries and offering a fee for memorial services is causing heartache for families who have found their loved ones on the website – screen grab.
A website publishing obituaries and offering a fee for memorial services is causing heartache for families who have found their loved ones on the website – screen grab. - Submitted

A lawyer in St. John’s is launching a class-action suit against a website that collects obituaries and reposts them. If successful, about a million Canadians could be a part of the class-action.

The statement of claim, which has not been proven in court, alleges that the site managed by Afterlife Network Inc. contains obituaries and photographs copied without permission from the websites of Canadian funeral homes and newspapers. The action says the website generates revenues by displaying the advertising of third party businesses and by permitting users to “light virtual candles and send flowers.”

St. John’s Lawyer Erin Best is attempting to certify the lawsuit before the Federal Court of Canada.

Best says the class-action application was issued in court on Jan. 12 and the company has since been served, “so they’ll now probably be sending us a response in the near future.”

Because it is in federal court, timelines are expedited. Best says she should be in court for the hearing of certification by Feb. 11. 

Related story:

Obituary website Afterlife violates copyright laws, St. John's lawyer says

However, she adds that once a case management judge is assigned, “it’s possible the deadline could be relaxed a little bit, depending on if the other side wants that or asks for it.”

Meanwhile, Best’s phone has been ringing off the hook since she first told The Telegram that the obituary website was engaging in copyright infringement. She’s also been inundated with emails from families who are upset and want to be a part of the class-action.

However, people do not need to do anything to join the class-action. Simply put, because applications filed in federal court are “opt-out,” it means no one has to do anything unless they do not want to be a part of the suit.

 “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’s-based law firm Stewart McKelvey. She adds there’s a page on the firm’s website called ‘Class Actions’ where details about the application will be posted early this week.

“People can check back there and then, if the class is certified, there will be an opportunity for them to enter their information there, and opt-out if they’d like to.”

Since the controversy broke out earlier this month, the company has moved to pare down many of the memorials on its site. Where there used to be obituaries copied verbatim, there are now parts of obituaries posted, and not nearly as many photos. Many obituaries have been removed completely. The company has previously said it would remove obituaries by request.

A search of the site on Jan. 21 showed 247, 952 results for obituaries in Canada.

 “But that shouldn’t matter to our action,” said Best. “We should be looking at the original number of a million.”

While Best says it is difficult to estimate exactly how many people had their written obituaries and photos infringed by the company, the Afterlife website itself is described by the company as “Canada’s largest database of deceased people. You can find more than 7 million obituaries and death notices of people throughout North America.”

The class-action application requests statutory damages, which is anywhere from $500 to $20,000 per work infringed.

“Typically for each deceased there are two works, because there is the textual work, which is the obituary, and then there is the photo,” said Best.

“It’s unlikely that Afterlife is going to have that much money,” she said. “It’s more about, if we’re successful, what we’re able to recover. But we’ve also asked for an injunction, so that would cause them to have to take the infringing material down.”

That would be welcome news to St. John’s resident George Murphy, who previously spoke about his family’s heartbreak upon seeing his late mother’s obituary posted on the site months after her death, with options to send flowers or light candles.

“They actually used her to help promote services that probably were no longer necessary … (and) were taking advantage of her and taking advantage of us,” he said. “You just feel violated. It’s sickening, and I’m still upset over it.”

 

Juanita.mercer@thetelegram.com

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