Freedom of Expression Trumps Privacy Rights as the SCC brings the Charter hammer down on Alberta's privacy statute
In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 [“United Food”], the Supreme Court of Canada has unanimously decided that Alberta’s Personal Information Protection Act [“PIPA”] unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike. The judgment, delivered by Cromwell and Abella JJ. concluded that:
 PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our view, this infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline.
The Supreme Court consequently declared that PIPA is invalid, but has suspended this declaration for 12 months to allow the Alberta legislature time to make the legislation constitutional.
Background and Decisions Below
This case arose from a labour dispute in which the Union, United Food and Commercial Workers, Local 401, was recording and photographing individuals crossing its picketline and using these images on signs and other materials for the dispute. Several of the individuals complained to Alberta’s Information and Privacy Commissioner, arguing that the collection and use of these images and videos violated PIPA. Except in very narrow circumstances, PIPA states at section 7(1) that an organization shall not collect, use, or disclose personal information about an individual without their consent. An Adjudicator for the Privacy Commissioner consequently ordered the Union to stop collecting the personal information for any purpose other than a possible legal proceeding, and to destroy any personal information it collected in contravention of PIPA.
On judicial review, the Union persuaded the chambers judge that its activities had expressive content protected by the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. Her Honour found that PIPA infringed this right by preventing the Union from collecting, using, and disclosing personal information obtained by individuals in public view, and that the breach could not justified under s. 1 of the Charter.
The Alberta Court of Appeal agreed with the chambers judge that that PIPA breached s. 2(b) of the Charter and could not be saved by s. 1, and granted the Union a constitutional exemption from PIPA.
The Supreme Court assessed whether PIPA and its regulations violated s. 2(b) of the Charter by restricting a union’s ability to collect, use or disclose personal information during a lawful strike; and whether the infringement could be justified pursuant to s. 1 of the Charter.
Since collecting, using, and disclosing personal information in the context of a lawful strike was inherently expressive, the Court found that s. 2(b) of the Charter was clearly engaged. PIPA is fairly broad in its prohibition on the collection, use, or disclosure of personal information without consent, and the Union’s activities did not fall under the exemptions in the Act, relating to information being collected, used, or disclosed for artistic or journalistic purposes, or for an investigation or legal proceeding. The Court therefore concluded that PIPA restricted freedom of expression and engaged in a s. 1 analysis, where the Court assessed whether (i) PIPA services a pressing and substantial objective, (ii) the provisions at issue are rationally connected to that objective; (iii) whether PIPA impairs the right to freedom of expression no more than is necessary; and whether its effects are proportionate to the government’s objective.
PIPA’s objective of governing the collection, use and disclosure of personal information by organizations with regard to both their need to do so and an individual’s right to have her or his personal information protected was found to clearly be pressing and substantial. The provisions at issue clearly related to the statute’s objective. Furthermore, the Court recognized the significance and beneficial effects of PIPA’s goal in an age where technology allows for large scale collection, analysis, and communication of people’s personal information. Providing individuals with control over their personal information “is intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values.”
Nevertheless, the Court ruled that PIPA’s detrimental effects were disproportionate to its benefits, as its restrictions failed to factor the nature of the personal information being collected, the purpose for its collection, use, or disclosure, and the situational context for this information. The Court assessed the specific context of this case and found that people crossing a picketline in a union dispute “would reasonably expect that their image could be caught and disseminated by others,” and that the information in this case comprised of images, not biographical or intimate details.
The Court found that expressive activity in a labour dispute directly related to the s. 2(d) Charter right of workers to associate to further common workplace goals. It held that free expression in a labour context could alleviate the power imbalance between employer and worker, allow unions to communicate their interests, and serve a broader societal interest in terms of bringing labour issues into the public arena for discussion and debate. With respect to the union’s picketline activities in this case, the Court ruled that the “imposition of public or economic pressure has come to be accepted as a legitimate price to pay to encourage the parties to resolve their dispute,” and that a union may achieve its goals by pressuring persons who cross the picketline.
This case highlights the Supreme Court’s strong emphasis on the right to freedom of expression, particularly in the labour relations context. It went at length to list and describe the value and importance of unions having broad expression rights in labour disputes. Any employers engaged in bargaining disputes with unions would be well advised to notify personnel approaching or crossing picketlines that they may be photographed or videotaped, and that the union may be able to make broad use of these images. In this particular case, photos of one individual crossing the picketline were used on a poster at the picketline with the text “This is [individual’s] Police Mugshot”, and images of his head were used in union newsletters and strike leaflets. Although the Supreme Court did not necessarily “condone all of the Union’s activities,” the Court did not examine the precise expressive activity at issue in this case.
The Court did note that “like privacy, freedom of expression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance.” Furthermore, it ruled that in so far as PIPA sought to safeguard informational privacy, it is “quasi-constitutional” in nature, and that the “importance of the protection of privacy in a vibrant democracy cannot be overstated.” Consequently, this decision should not be taken as a blanket allowance for unions to collect any personal information on picketline crosers or to make any use or disclosure of it. The Court’s recognition of the importance and quasi-constitutional nature of protecting privacy leaves the door open to future privacy-based challenges to the collection, use, or disclosure of personal information in a labour dispute. For example, using the Court’s contextual analysis, if the nature of the information collected by a union was intimate, or contained biographical detail, or violated someone’s reasonable expectation of privacy, these considerations may potentially outweigh any freedom of expression right. Given the Court's recognition of the link between privacy rights and the autonomy and dignity of the individual, it is possible that situations where the nature or use of the personal information collected would compromise an individual's safety and privacy to a sufficient extent that freedom of expression would no longer prevail.
This decision is also significant in that it may affect other privacy statutes, such as the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”), currently being used by the rest of Canada with the exception of Quebec and British Columbia. As the Supreme Court noted, PIPEDA is much less restrictive than PIPA, since its limitations on the collection, use, and disclosure of personal information are limited to activities undertaken for commercial purposes. PIPA, on the other hand, applied to any corporation unincorporated association, trade union, partnership, or an individual in a commercial capacity. Since the Governor General in Council has previously determined that PIPA provides comparable privacy protection, Alberta has been exempt from PIPEDA.
Whether or not this decision will affect PIPEDA or other privacy statutes significantly, by provoking s. 2(b) Charter challenges to these laws is yet to be seen. The Court was careful to focus its decision on the context at hand, namely, that of a labour dispute and the importance of unions being able to exercise their right to free expression. As noted in the decision, PIPA applies to a far broader set of situations than PIPEDA, which is focused on activities undertaken for commercial purposes. Nevertheless, PIPEDA's definition of "personal information" mirrors PIPA's, as "information about an identifiable individual". Under PIPEDA, organizations cannot collect, use, or disclose personal information for commercial purposes without consent except for a series of exceptions. It is conceivable that on the Court's reasoning, any litigation, based on privacy statutes like PIPEDA, opposing the collection of personal information could trigger a s. 2(b) challenge to these privacy laws. However, the merits of a s. 2(b) challenge to an act like PIPEDA would greatly depend on the purpose for which the information was being collected, used or disclosed. The values in protecting a union's expression rights in the precise context of a labour dispute were paramount in the Court's Charter analysis and ultimate conclusion in this case. In many other contexts, a limitation on expressive rights may be justified given the privacy interests at stake.
For a helpful commentary on this case and its implications on privacy laws around Canada, including the interplay between this decision and the forthcoming CASL anti-spam legislation, see http://www.canadiantechlawblog.com/2013/11/15/scc-strikes-down-alberta-privacy-legislation-on-speech-grounds/
Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62
Case Docket: 34890
Date of Decision: November 15, 2013
freedom of expression labour relations picketline