Canada: Obituary Piracy Assessed

Last Updated: May 21 2019
Article by Martin P.J. Kratz

Thomson v. Afterlife Network Inc., 2019 FC 545, is a Federal Court decision in which the Court considers the existence of copyright in obituaries used in an e-commerce context.

DT was the representative plaintiff in a class action lawsuit claiming that posted obituaries and photographs, that were authored and taken by the plaintiff and other class members without their permission and thereby Afterlife infringed the copyright and the moral rights of the class members.

Afterlife operated a website that contained over a million obituaries in Canada and on which Afterlife reproduced obituaries and photos from the websites of Canadian funeral homes and newspapers and sold, for its own profit, flowers and virtual candles and hosted advertising for third-party businesses. The Terms of Service on Afterlife's website asserted that Afterlife owned the copyright in the website contents.

The plaintiff's father had died in January 2017. She authored an obituary for her father and allowed the funeral home to publish it, along with a photograph she had taken of her dad. In January 2018, she discovered that the Afterlife website displayed, without her permission, her father's obituary and photograph along with options to buy flowers and virtual candles on the same page.

The plaintiff submitted that Afterlife caused people who viewed the obituary on the website to believe that she had consented to its use and that she was profiting from such sales. The plaintiff expressed outrage and mortification that others would think she sought to profit from her father's death. Similar evidence was provided by other class members.

The class action lawsuit was filed and certified by the Federal Court. Afterlife's solicitor withdrew and Afterlife did not participate in a defense of the lawsuit. Afterlife shut down its website about one month after the class proceeding was commenced and directed all website traffic to a new website, similar in posting obituaries and sells advertising, flowers and virtual candles in association with the obituaries, but the obituaries are in a template form rather than copied from the authored works.

The plaintiff asserted copyright infringement, that it called 'obituary piracy' and also claimed that her honour and reputation were prejudiced by the association of her original work with advertisements, in violation of her moral rights. She felt that she felt her honour and reputation were diminished because others may think that she was trying to profit from her father's death.

In addition to injunctive relief the plaintiff sought aggregate damages representing statutory damages for the copyright infringement, damages for breach of moral rights, aggravated damages and punitive damages submitting that aggregate damages are appropriate as there are thousands of class members and that they have all suffered damages that would be difficult to quantify on a case-by-case basis.

On the question of statutory damages the plaintiff noted over one million obituaries on the Afterlife website with most having both a photo and obituary text.

The Court applied CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 to find that the obituaries and photographs were original works in which copyright subsisted. The Court found the postings on Afterlife's website provide evidence that it reproduced the original works and given the lack of permission, found infringement of the author's copyrights.

On the moral rights claim the Court applied Maltz v Witterick, 2016 FC 524, finding that is both a subjective and objective aspect to the test to establish infringement of moral rights and Collett v Northland Art Company Canada Inc., 2018 FC 269 that "an author's right to the integrity of a work includes not only a highly subjective 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".

In the present case Afterlife associated the original works with a product or service by adding the sale of ads, flowers and candles to the pages displaying obituaries. The Court noted that the author of the original works must establish not only their own subjective view that their honour or reputation has been prejudiced but also provide objective evidence of the prejudice. The Court found that while the plaintiff was sincere in her belief that both her honour and reputation have been prejudiced, no objective evidence had been provided, such as public opinion or expert evidence. The Court concluded that the Court did not have the ability to make a determination as to prejudice without objective evidence and therefore the Court could not find that Afterlife has infringed the moral rights of the plaintiff and class members.

The Court issued an injunction binding Afterlife but declined to issue a wide injunction encompassing other works without evidence showing it was justified.

Applying the minimum statutory damages to the two million infringements (photos and obituary) would be disproportionate so the Court awarded aggregate damages of $10,000,000.

The Court considered Afterlife's conduct on class members had been significant, they were high handed, in reluctance to remove the obituaries and in "its assertion of its own copyright in the original works pirated from the class members, and in its apparent callousness regarding the impact on the class members". The Court noted the size of the class and that the pro-rated distribution of any amounts recovered would result that "none of the class members will truly be adequately compensated". In these circumstances, the Court awarded aggravated damages in the amount of $10,000,000 but declined to order further punitive damages.

The case is interesting to show how quickly damages from large numbers of infringements can scale in an e-commerce context. The case is a caution for all website operators to carefully assess the right that they have to post content on their website.

The case is also an important reminder on the test to claim damages for violation of moral rights. Objective evidence must accompany subjective evidence of the prejudice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions