In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 the Canadian Supreme Court had to consider the weighing of privacy considerations against rights of freedom of expression in the operation of an Alberta Statute, the Personal Information Protection Act (“PIPA”). The issue for the Supreme Court ws whether PIPA unjustifiably limited a union’s right to freedom of expression in the context of a lawful strike.

FACTS

In 2006, during a 305 day strike the United Food and Commercial Workers Local 401 (the Union) recorded and photographed individuals crossing a picket line  [4]. The Union posted signs stating that images of those persons might be placed on a web site called www.casinosabs.ca.

The Alberta Information Privacy Commissioner received complaints from:

1. the Vice-President of the Casino who complained that he was photographed or video-taped. Two pictures of him were used on a poster displayed at the picketline with the text: “This is [x’s] Police Mugshot.”
2. a member of the public who testified that cameras were trained on the entrance to the Casino where he would regularly meet friends.
3. a complainant testified that she had been photographed and video-taped while working near the Casino entrance [5].

No recordings of the complainants were placed on the website.

At first instance an adjudicator appointed by the Commissioner found that the collection of the personal information was not covered by any exemption in PIPA and ordered the Union to stop collecting information for a person other than a possible investigation or legal proceeding and to destroy that information that was in its possession [6].

On judicial review a chambers judge found the Union’s activity had expressive content and that PIPA limited it’s freedom of expression by preventing it from “..collecting, using, and disclosing personal information obtained about individuals while they were in public view”[7].

On appeal the Court of Appeal framed the issue as “..whether it was justifiable to restrain expression in support of labour relations and collective bargaining activities.”   Their Honours found PIPA overbroad.  They regarded the privacy interest was minor since the complainants were in a public place and had notice that images were being collected.  The competing interest was the right of workers to engage in collective bargaining and of the Union to communicate with the public.  Their Honour’s dismissed the appeal [8].

The Alberta Privay Commissioner and the Attorney General appealed to the Supreme Court.

DECISION

The Supreme Court framed the constitutional questions , at [9], as :

1. Do the Personal Information Protection Act, S.A. 2003, c. P-6.5, and the Personal Information Protection Act Regulation, Alta Reg. 366/2003, violate s. 2(b) of the Canadian Charter of Rights and Freedoms insofar as they restrict a union’s ability to collect, use or disclose personal information during the course of a lawful strike?

 2.  If so, is the infringement a reasonable limit prescribed by law, which can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

The Supreme Court agreed with the Court of Appeal that the collection, use and disclosure of personal information by the Union in the context of picketing during a lawful strike is inherently expressive [10].

The Court reviewed PIPA stating:

1. it was was inspired by the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”) [13].
2. it is part of an international movement towards giving individuals better control over their personal information [13]
3. its stated purpose is  “. . . to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable.”[14]
4. it establishes a general rule that organizations cannot collect, use or disclose personal information without consent  and it  “applies to every organization and in respect of all personal information”.  An “organization” includes a corporation, an unincorporated association, a trade union, a partnership, or an individual acting in a commercial capacity:
5. “personal information” is defined broadly to mean “information about an identifiable individual” and it includes information that is not “private” so that “personal information does not lose its character as personal information if the information is widely or publically known [15].
6. its exemptions include

• restricting the definition of “organization” to excluding individuals acting in a “personal or domestic capacity”,
• non-profit organizations unless they collect, use, or disclose information in connection with a commercial activity,
• information collected, used, or disclosed for “artistic or literary purposes and for no other purpose”,
• “journalistic purposes and for no other purpose”,
• where  collection, use or disclosure of the information is reasonable for the purposes of an investigation or a legal proceeding;  or
• the information is “publicly available as prescribed or otherwise determined by the regulations” such as in a telephone or business directory (or other similar registry), in a record of a quasi-judicial body or in a magazine, book, or newspaper [16].

The Court found, without difficulty, that PIPA restricts freedom of expression [17]. The Court then found that while PIPA is rationally connected to a pressing and substantial objective its broad limitations on freedom of expression are not demonstrably justified because its limitations on expression are disproportionate to the benefits the legislation seeks to promote [18].  The Court found that, as a consequence, PIPA deems virtually all personal information to be protected regardless of context [25]. It does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes and does not include any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the Act.  The  restrictions on a union’s ability to communicate and persuade the public of its cause thereby impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline [37].

In considering the context the Court noted:

1. the personal information was collected by the Union at an open political demonstration where it was readily and publicly observable [26].
2. those crossing the picketline would reasonably expect that their image could be caught and disseminated by others such as journalists, for example [26].
3. the personal information collected, used and disclosed by the Union was limited to images and did not include intimate biographical details [26].
4. while by appearing in public, an individual does not automatically forfeit his or her interest in retaining control over the personal information however  PIPA’s restrictions impedes the formulation and expression of views on matters of significant public interest and importance [27].

In the context of assessing the pressing and social objective their Honours stated:

1. the ability of individuals to control their personal information is intimately connected to their individual autonomy, dignity and privacy which are fundamental values that lie at the heart of a democracy [19].
2. legislation which aims to protect control over personal information should be characterized as “quasi-constitutional” because of the fundamental role privacy plays in the preservation of a free and democratic society [19]
3. PIPA’s objective is increasingly significant in the modern context, where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes [20].
4. PIPA seeks to enhance an individual’s control over his or her personal information by restricting who can collect, use and disclose personal information without that individual’s consent and the scope of such collection, use and disclosure and reflects an emerging recognition that the list of those who may access and use personal information has expanded dramatically and now includes many private sector actors.
5. PIPA also seeks to avoid the potential harm that flows from the permanent storage or unlimited dissemination of personal information through the Internet or other forms of technology without an individual’s consent.

Regarding the importance of freedom of expression in labour disputes the Court stated:

1. Expressive activity in the labour context is directly related to the Charter protected right of workers to associate to further common workplace goals under s. 2(d) [30]
2. free expression on a person’s employment and the conditions of their workplace can inform their identity, emotional health, and sense of self-worththese issues  “contributes to self-understanding, as well as to the ability to influence one’s working and non-working life” [31].
3. it can play a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker [32]
4. it can enhance broader societal interests  [33]
5. picketing represents a particularly crucial form of expression [34]

At [38] the Supreme Court made a general comment regarding the balancing of competing interests that must be undertaken stating:

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.  To the extent that PIPA restricted the Union’s collection, use and disclosure of personal information for legitimate labour relations purposes, the Act violates s. 2(b) of the Charter and cannot be justified under s. 1.

ISSUE

The Canadian Supreme Court undertook a thorough analysis of PIPA, protecting privacy, against the right to freedom of expression.  This is a balancing exercise that has become quite well established and non controversial.  As is the case in the United States Jurisprudence when considering legislation that impacts on freedom of speech the Canadian Supreme court found that Alberta legislation to be overbroad and declared PIPA to be invalid.

The approach the Court took in weighing the competing interests is instructive in showing that freedom of expression issues are not confined to media organisations.  On that note it is relevant to see that privacy legislation does not defeat the ability of a party to express himself/herself/itself.  The court acknowledged the fundamental, and growing, need for privacy protections but also the vital requirement for sufficient scope in legislation to allow the weighing of competing rights, in this case freedom of expression.  The legislation was found wanting in that latter respect.

In the Australian context the decision is relevant for consideration by the Australian Law Reform Commission when preparing its report on a statutory right of privacy.  It is also relevant for (some) media outlets to consider it before they complain that a statutory right to privacy in and of itself destroys the right to freedom of expression.  It hasn’t and there is no evidence that it would.

A big thanks to Johanna for telling me of this decision.