If privacy legislation significantly impairs Charter rights do privacy rights or Charter rights prevail? Specifically, does an individual’s right to privacy for publically crossing a picket line under Alberta’s comprehensive privacy legislation Personal Information Protection Act (PIPA) have to yield to a union’s right of free expression to film and disseminate that act under the Canadian Charter of Rights and Freedoms? This question was answered in the affirmative by the Alberta Court of Appeal in United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130. Earlier this week, the Supreme Court of Canada granted leave to appeal the decision (now styled Inforrmation and Privacy Commissioner, et al. v. United Food and Commercial Workers, Local 401, et al.)
In the UFCW case, the union videotaped people publically crossing its picket line, and suggested it might post those recordings on a website entitled “www.CasinoScabs.ca”. Several persons who were recorded crossing the picket line filed complaints with the Alberta Privacy Commissioner under PIPA. The complainants included employees and officers of the employer, as well as members of the public.
The Court held, in accordance with established law, that the union had a right to express its views about the collective bargaining process, the strike, and crossing of the picket line, and it also had a right to gather and disseminate the information for that purpose. That provided constitutional protection for making and publishing the videos of the picket line. The Court found that the use of the videos would have violated PIPA. On these facts, the union established a prima facie breach of its s.2 Charter rights.
The Court then analyzed whether the broad prohibitions in PIPA could withstand Charter scrutiny. It did so by asking and answering whether: the objectives of PIPA are related to a pressing and substantial goal; PIPA’s prohibitions are proportionate; PIPA’s limiting measures are rationally connected to its objective; PIPA’s infringement on the Charter values of free expression is as limited as possible; and the salutary effects of the Act outweigh its deleterious effects.
The Court had little trouble concluding that PIPA had a pressing and substantial goal:
Prior to the enactment of modern privacy legislation, there was little common law protection for privacy rights. The advent of new technology called for legislative intervention. New technology not only permitted the collection of vast amounts of personal data, it also enabled a much wider analysis of that data to extract information. Most importantly, new technology like the Internet enables vastly wider dissemination of information. In the interest of protecting reasonable expectations of privacy, expectations that one can control one’s own image and personal information, and in order to limit the misuse (including fraudulent use) of personal information, many legislatures enacted privacy legislation. This legislation can be accepted as addressing a pressing and substantial problem.
The pressing and substantial problem is the potential misuse of personal information. Limiting the ability of organizations to collect, store, and use that information has a rational connection to the objective.
The Court, however, concluded that PIPA had a problem relating to proportionality because of its breadth. According to the Court PIPA was “inadequately sensitive” to protected Charter rights because:
- It covers all personal information of any kind, and provides no functional definition of that term. (The definition of “personal information” as “information about an identifiable individual” is essentially circular.) The Commissioner has not to date narrowed the definition in his interpretation of the Act in order to make it compliant with Charter values.
- The Act contains no general exception for information that is personal, but not at all private. For example, the comparative statutes in some provinces exempt activity that occurs in some public places.
- The definition of “publicly available information” is artificially narrow.
- There is no general exemption for information collected and used for free expression.
- There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.
The Court went on to conclude that PIPA had significant effects on rights of free expression protected by the Charter. It found that the Commissioner had “not demonstrated why this heavy handed approach to privacy is necessary, given the impact it has on expressive rights.”
It is also not apparent that the salutary effects of the Act outweigh its deleterious effects. While the protection of personal information is important, it is no more important than collective bargaining and the rights of workers to organize. It is also no more important than the right of the union to communicate its message to the public. On the other hand, the privacy interest being protected here is minimal. The persons who were videotaped were in a public place, crossing an obvious picket line, in the face of warning signs that images were being collected. The privacy expectations were very low. Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted from the Adjudicator’s order.
The Commissioner argues that the rights created by the Act are “quasi-constitutional” in nature. That verbal rhetoric is not particularly helpful. The statutory provisions in question are not a part of the constitutional framework, nor is there any general protection of privacy or personal information to be found in the constitution. The Act creates a statutory regime, replete with exceptions and exemptions, that do not bear the characteristics of fundamental constitutional protections. While important, the protections in the Act cannot be equated with constitutional values like freedom of expression and freedom of association.
The Commissioner had also argued that the need for a person’s consent to the use of the videos found in PIPA was justifiable. This was based on the argument that a member of the public has an expansive right to protect the use of his or her image, even when the image is taken in a public place. The Court rejected this expansive view of privacy.
Individuals undoubtedly do have an interest in how their images are used. Members of the public cannot, however, have a reasonable expectation that they can live their lives in total anonymity. People do not have a right to keep secret everything they do in public, such as crossing picket lines. There is no recognized right to withhold consent to the dissemination of information about unpleasant conduct. Holding people accountable for what they do or do not do in public is a component of the right to free expression.
The Court held that PIPA’s infringements on free expression could not be justified. It allowed the appeal and issued a declaration that the application of the Act to the activities of the union was unconstitutional.
The decision of Alberta’s highest court is significant and might well be applied to other Canadian privacy legislation inluding PiPEDA. PIPEDA also has a broad defintion of personal information that provides no functional definition of the term. The term has also not been expressly narrowed in order to make it compliant with Charter values. PIPA’s reguations that define “publicly available information” is artificially narrow. So are PIPEDA’s regulations on what constitutes publically available information. PIPEDA also has no general exemption for information collected and used for free expression. Nor does it have any exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses. Based on the structural similarties between PIPA and PIPEDA one might expect similar Charter challenges of PIPEDA to succeed.
The UFCW v Alberta case also forshadows likely challenges to Canada’s anti-spam law, CASL. Its “ban all” approach to the transmission of commercial electrtonic messages (subject only to limited defined exceptions) is bound to raise the same problems identified by the Alberta Court of Appeal. Canada’s unprecedented failure to recognize consents to send CEMs based on implied or inferred circumstances is one of the most serious restrictions that is most likely to be challenged.
The Registrar of the Supreme Court summarized the case as follows:
Charter – Freedom of expression – Privacy law – Labour relations – Administrative law – Privacy legislation prohibiting Respondent Union from collecting, using or disclosing images of individuals at or near a picket line during the course of a lawful strike – Whether the Personal Information Protection Act is contrary to s. 2(b) of the Charter and if so, whether it constitutes a reasonable limit in a free and democratic society – How are administrative tribunals that are precluded from determining Charter issues to proceed when the rights protected by their home statute come into conflict with protected Charter rights – Canadian Charter of Rights and Freedoms, ss. 1 and 2(b) – Personal Information Protection Act, S.A. 2003, c. P-6.5 – Personal Information Protection Act Regulations, Alta Reg 366/2003, s. 7.
The Respondent Union recorded video and took still photos of individuals located near and/or crossing a picket line during a lawful strike. Certain images collected by the Union were subsequently were placed on posters displayed at the picket-line and appeared newsletters and leaflets available to union members and the public. Complaints were filed with the Applicant Information and Privacy Commissioner of Alberta pursuant to the Personal Information Protection Act, S.A. 2003, C. P-6.5 (“PIPA”). 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.