Friday, November 15, 2013

Supreme Court of Canada finds Alberta privacy law to be unconstitutional infringement of freedom of expression

The Supreme Court of Canada today released its decision in Information and Privacy Commissioner et al v. United Food and Commercial Workers, Local 401, 2013 SCC 62.

This decision has been anxiously awaited as it has far-reaching implications for privacy legislation throughout Canada, as the provisions at issue in Alberta’s private sector privacy law are mirrored in the federal and British Columbia legislation.

The case arose in the context of a labour dispute at one of Alberta’s casinos. Striking employees set up a picket-line and video recorded replacement workers as they crossed the line. Images from the recordings were later placed on posters displayed at the picket‑line and appeared in newsletters and leaflets available to union members and the public.

Complaints were filed with the appellant Information and Privacy Commissioner of Alberta under that province’s Personal Information Protection Act. An adjudicator appointed by the Privacy Commissioner held that PIPA prohibited the Union from collecting, using and disclosing such photos and recordings without the consent of the individuals in question (which was unlikely to be forthcoming). The Union took the position that such a finding was in infringement of freedom of expression and sought judicial review in the Court of Queen’s Bench. which found that parts of the legislation were unconstitutional as an unreasonable infringement of freedom of expression as guaranteed under the Charter of Rights and Freedoms. The Alberta Court of Appeal concurred, and found that the infringement could not be justified.

On appeal, the Supreme Court of Canada has found that the provisions in question unduly limit the union's ability to communicate its message to the public and to other interested parties and are thus contrary to Section 2(b) of the Charter. This limitation is not justifible, the Court found:

[25] The price PIPA exacts, however, is disproportionate to the benefits it promotes. PIPA limits the collection, use and disclosure of personal information other than with consent without regard for the nature of the personal information, the purpose for which it is collected, used or disclosed, and the situational context for that information. As the Adjudicator recognized in her decision, PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes. Indeed, the Act 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 legislation. As counsel for the Commissioner conceded during oral submissions, PIPA contains a general prohibition of the Union’s use of personal information (absent consent or deemed consent) to further its collective bargaining objectives. As a result, PIPA deems virtually all personal information to be protected regardless of context.

[26] But the extent to which significant values were actually impaired in the context of this case must be kept in context. The personal information was collected by the Union at an open political demonstration where it was readily and publicly observable. Those crossing the picketline would reasonably expect that their image could be caught and disseminated by others such as journalists, for example. Moreover, the personal information collected, used and disclosed by the Union was limited to images of individuals crossing a picketline and did not include intimate biographical details. No intimate details of the lifestyle or personal choices of the individuals were revealed.

[27] It goes without saying that by appearing in public, an individual does not automatically forfeit his or her interest in retaining control over the personal information which is thereby exposed. This is especially true given the developments in technology that make it possible for personal information to be recorded with ease, distributed to an almost infinite audience, and stored indefinitely. Nevertheless, PIPA’s restrictions operate in the context of a case like this one to impede the formulation and expression of views on matters of significant public interest and importance.

In the result, the provisions of PIPA were found to be unconstitutional and not justifiable. However, instead of striking down the provisions immediately and leaving a vacuum, the Court has suspended the declaration of invalidity for twelve months to allow the legislature to amend the legislation.

Because the provisions in question are effectively identical to those in British Columbia's privacy law and the Federal PIPEDA, it will be incumbent upon the BC legislature and the federal Parliament to make the same amendments to keep those laws constitutionally viable.

For previous blog posts on the case, click here and here's the headnote:

Constitutional law — Charter of Rights — Freedom of expression — Labour relations — Privacy — Union video‑taping and photographing individuals crossing its picket line for use in its labour dispute — Whether legislation restricting the collection, use and disclosure of personal information violates union’s expressive right under s. 2(b) of Charter and, if so, whether violation is justified — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) — Personal Information Protection Act, S.A. 2003, c. P‑6.5 — Personal Information Protection Act Regulation, Alta Reg. 366/2003.

During a lawful strike lasting 305 days, both the Union and the employer video‑taped and photographed individuals crossing the picketline. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website. Several individuals who were recorded crossing the picketline filed complaints with the Alberta Information and Privacy Commissioner. The Commissioner appointed an Adjudicator to decide whether the Union had contravened the Personal Information Protection Act (PIPA). The Adjudicator concluded that the Union’s collection, use and disclosure of the information was not authorized by PIPA. On judicial review, PIPA was found to violate the Union’s rights under s. 2(b) of the Charter. The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA.

Held: The appeal is substantially dismissed.

PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent. None of PIPA’s exemptions permit the Union to collect, use and disclose personal information for the purpose of advancing its interests in a labour dispute. The central issue is whether PIPA achieves a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression. To the extent that PIPA restricts collection for legitimate labour relations purposes, it is in breach of s. 2(b) of the Charter and cannot be justified under s. 1.

The purpose of PIPA is to enhance an individual’s control over his or her personal information by restricting the collection, use and disclosure of personal information without that individual’s consent. The objective of providing an individual with this measure of control is intimately connected to individual autonomy, dignity and privacy, self‑evidently significant social values.

But the Act 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 legislation. This Court has long recognized the fundamental importance of freedom of expression in the context of labour disputes. PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations. Picketing represents a particularly crucial form of expression with strong historical roots. 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. This infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over the personal information that they expose by crossing a picket line. It is therefore not justified under s. 1 of the Charter.

Given the comprehensive and integrated structure of the statute, the Government of Alberta and the Information and Privacy Commissioner requested that the Court not select specific amendments, requesting instead that the entire statute be declared invalid so that the legislature can consider the Act as a whole. The declaration of invalidity is therefore granted but is suspended for a period of 12 months to give the legislature the opportunity to decide how best to make the legislation constitutionally compliant.

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