Tuesday, September 06, 2011

Alberta court declares portions of provincial privacy law unconstitutional

The Alberta Courts have once again issued a stunning decision regarding privacy laws in that province. In this case, United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 (CanLII), the Alberta Court of Queen's Bench has determined that portions of the Personal Information Protection Act (Alberta) ("PIPA") are unconstitutional.

This particular case is a judicial review of a decision of the Office of the Information and Privacy Commissioner that held a trade union violated PIPA by videotaping at a picket line. PIPA allows the collection, use and disclosure of personal information that is "publicly available", which is very narrowly defined in the Act and its regulations. In addition, it does not apply to information that is collected for journalistic purposes "and for no other purpose".

On a bare reading of the Act, information from a public protest or picket line does not fit within the definition of "publicly available". In addition, the information collected by the union was collected for journalistic purposes, among others, which meant that exception was not available.

The Court found that PIPA violates freedom of expression under Section 2(b) of the Charter and these provisions cannot be justified by Section 1 of the Charter.

In particular, the Court noted:

[159] I conclude that the impairment is not minimal. The narrow definition of “publicly available information” protects information in public view, and in which there is no reasonable expectation of privacy. The British Columbia’s Personal Information Protection Act strikes the balance by permitting collection, use, and disclosure of personal information collected by observation at a performance, a sports meet or a similar event at which the individual voluntarily appears, and that is open to the public (ss. 12(1)(d), 15(1)(d) and 18(1)(d)). PIPA has no exception for personal information collected at a public event, including a public, political event.

[160] Moreover, personal information is not protected any further by prohibiting an organization with both a journalistic purpose and some other purpose from collecting, using and disclosing it, but not prohibiting an organization with only a journalistic purpose. This merely favours some organizations over others. Regardless of the prohibition on organizations with a journalistic purpose and some other additional purpose, the personal information could be collected, used and disclosed by another organization with only a journalistic purpose.

The Court also determined that PIPA is not in the nature of human rights regulation (which would endow it with quasi-constitutional status), but is merely regulatory:

[142] Moreover, the Quebec Charter enjoys quasi-constitutional status as human rights legislation: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 (CanLII), 2000 SCC 27, [2000] 1 S.C.R. 665 at paras. 27-28; Globe and Mail v. Canada (Attorney General), 2010 SCC 41 (CanLII), 2010 SCC 41, [2010] 2 S.C.R. 592 (at para. 29). Such statutes are to be interpreted differently, see Quebec (Commission des droits de la personne et des droits de la jeunesse) at para. 29:
Professor R. Sullivan summarized as follows the rules of interpretation that apply to human rights legislation:

(1) Human rights legislation is given a liberal and purposive interpretation. Protected rights receive a broad interpretation, while exceptions and defences are narrowly construed.

(2) In responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation are adapted not only to changing social conditions but also to evolving conceptions of human rights.

[143] PIPA, however, is regulatory and does not establish human rights; it regulates the collection, use and disclosure of personal information, and in doing so limits the freedom of expression of some, but not all. For example, individuals would not be prevented from collecting, using and disclosing the personal information at issue here, nor would the traditional media.

This is a big deal and has potential effects outside of the province given that the federal privacy law, the Personal Information Protection and Electronic Documents Act (Canada) has very similar provisions about journalism and publicly available information.

I would be surprised if the Alberta government didn't appeal the decision.


John G said...

Sounds like a good decision to me. I think more sense needs to be made of the 'publicly available' exception to privacy rules. I can see other courts disagreeing on how much constitutional content privacy laws have, but one could still come to the same result without agreeing with the AB court on that point.

Redfred said...

So my under age daughter was photographed my a reporter who got her under age permission to publish her photo with her full name and where she attends church. It was on the front page of the newspaper. How can this be legally ok? The schools ask for permission to publish photos and names of my children, but the local newspaper can do whatever they want here in Alberta? How is this ok? Because they want to sell newspapers they can put my daughter at risk (who now has had a predator try to contact her btw)? This is absurd! This shouldn't be allowed.