Alberta Privacy Legislation Violates Freedom of Expression
In a recent decision by the Supreme Court of Canada, Alberta privacy legislation that prohibited the capture and publicizing of workers crossing a picket-line was declared invalid as a disproportionate restriction on freedom of expression.
During a 300-day labour relations dispute, an Alberta casino employed replacement workers. As the Union picketed the casino, it took photographs and videotapes of these replacement workers, as well as other executive-level staff members. The Union posted notices that these images and video clips would be available on the Internet.
The workers whose images were captured objected, making a complaint to the Information and Privacy Commissioner’s Office, in which they alleged that their privacy was being violated in contravention of Alberta’s Personal Information Protection Act (PIPA). The Union contended that, in accordance with the Canadian Charter of Rights and Freedoms (the Charter), it had the
In a recent decision by the Supreme Court of Canada, Alberta privacy legislation that prohibited the capture and publicizing of workers crossing a picket-line was declared invalid as a disproportionate restriction on freedom of expression.
During a 300-day labour relations dispute, an Alberta casino employed replacement workers. As the Union picketed the casino, it took photographs and videotapes of these replacement workers, as well as other executive-level staff members. The Union posted notices that these images and video clips would be available on the Internet.
The workers whose images were captured objected, making a complaint to the Information and Privacy Commissioner’s Office, in which they alleged that their privacy was being violated in contravention of Alberta’s Personal Information Protection Act (PIPA). The Union contended that, in accordance with the Canadian Charter of Rights and Freedoms (the Charter), it had the right to capture these images and disseminate them for the purpose of furthering a labour relations cause. The Adjudicator appointed to determine this constitutional issue agreed with the workers on the basis that PIPA did prohibit the collection, storage, use and dissemination of personal information by any organization without consent. In the Adjudicator’s opinion, the legislation fit squarely with the facts at hand.
On judicial review to the Court of Queen’s Bench, however, the Adjudicator’s decision was overturned. The Court established that the Union’s collection, use and dissemination of the images and video clips constituted expressive content, which is clearly protected by the right to freedom of expression under section 2(b) of the Charter. The Privacy Commissioner and the Attorney General of Alberta appealed this decision to the Alberta Court of Appeal. At this level, it was affirmed that the impugned information is personal information which, in the context of these facts, is constitutionally protected expressive content. The Court of Appeal also noted that the privacy interest in the images and video clips were minimal, while the blanket prohibition under PIPA was quite broad.
Leave to appeal to the Supreme Court of Canada was sought and granted. On November 13, 2013, the Supreme Court rendered its decision. The issue before the Court was whether PIPA violated the right to freedom of expression provided for by the Charter and, if so, whether such a violation could be demonstrably justified. Justices Abella and Cromwell writing for the Court determined that yes, the Charter had been violated and no, such a violation could not be justified. The Court based its decision on the following findings:
• Both labour relations and privacy rights are important aspects of the political economy in general and the lives of citizens specifically;
• Picketing has historically been recognized in this society and by the Supreme Court as an important aspect of labour relations;
• The protection of privacy rights through privacy legislation is fundamentally “quasi-constitutional”; and
• On the particular facts of this case, PIPA is too broad because it fully protects the privacy of workers crossing the picket-line but it has no regard for the nature of personal information, the purpose for which it is collected, used or disclosed and the labour relations context of that information.
The Court emphasized that, in order to justify a Charter violation, there must be a pressing objective, a rational connection between the objective and the means to achieve that objective, and the means must be a proportional avenue to achieve that objective.
The Court stated that PIPA’s blanket prohibition is disproportional: on one side of the scale is a labour relations dispute and union’s ability to use striking and picketing effectively to communicate persuasively with the general public, while on the other side of the scale is a mild privacy interest that consists of limited, non-intimate photographs and video of people walking in the public sphere where they may be observed by anyone in the context of the politically charged exercise of crossing a picket line.
As a remedy, the Court declared PIPA invalid. The declaration of invalidity is suspended for a period of 12 months, in order to give the legislature time to ensure compliance with the Charter.
Few Canadian provinces have enacted privacy legislation similar to PIPA, and the Court in this case took care to differentiate PIPA from the Personal Information Protection and Electronic Documents Act (PIPEDA), which applies to inter-provincial and international commercial collection, storage, use and disclosure of personal information. Ontario and Québec do not fall under PIPEDA and have not enacted similar privacy legislation. Regardless, this decision is relevant to employers throughout Canada as it demonstrates that the right to privacy is not subservient to freedom of expression. Rather, where there is a conflict, access to both rights and freedoms will be weighed for balance and proportionality.