The Supreme Court of Canada has just held that the collective right to freedom of expression in a lawful strike situation trumps an individual's right to control their information in a public setting, striking down the Alberta Personal Information Protection Act (PIPA).
In its decision, Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, the Supreme Court weighed the collective rights of a union's freedom of expression under the Charter of Rights and Freedoms against the rights of individuals whose personal information was collected, used and disclosed without consent by the union.
The Supreme Court found that Alberta's Personal Information Protection Act (PIPA) violates s. 2(b) of the charter (the right to right to freedom of expression) because its impact on freedom of expression in the labour context is disproportionate and the infringement is not justified under s.1 (the charter provision which permits a reasonable limit to be imposed upon a charter right if justifiable in a free and democratic society).
During a union's lawful picketing activity the union photographed individuals crossing the picket line. Some of those photos were used in posters and leaflets. Responding to complaints by those whose information was collected and used without consent, the Office of the Information and Privacy Commissioner appointed an adjudicator who found that the union's efforts were for an expressive purpose and that "one of the primary purposes of the Union's information collection was to dissuade people from crossing the picket line" and rejected the union's claim that the collection, use and disclosure came within the journalistic purposes exemption under PIPA.
The union was ordered to stop collecting the personal information for any purposes other than a possible investigation or legal proceeding and to destroy any personal information it had in its possession that had been obtained in contravention of PIPA.
The union sought judicial review claiming that the provisions of PIPA that prevent it from collecting, using and disclosing personal information obtained from its lawful picket line infringed s. 2(b) of the charter. The chambers judge found breach of the charter right which was not justified under S. 1 of the charter. The Alberta Court of Appeal was of the view that the real issue in the case was whether it was justifiable to restrain expression in support of labour relations and collective bargaining activities and concluded that PIPA was overbroad and granted the Union a constitutional exemption from the application of PIPA.
The Office of the Information and Privacy Commissioner appealed to the Supreme Court. This issues were whether the restriction of a union's right to collect, use and disclose personal information during a lawful strike violate S. 2(b) of the Charter and if so if such breach was saved by S. 1.
The unanimous Court recognized a pressing and substantial objective behind PIPA, namely 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."
The Supreme Court recognized that providing an individual with some measure of control over his or her personal information is intimately connected to their individual autonomy, dignity and privacy and that these are fundamental values that lie at the heart of a democracy.
Noting the broad restrictions under PIPA the Supreme Court found that "these broad restrictions are not justified because they are disproportionate to the benefits the legislation seeks to promote."
Context is everything and to the Supreme Court it was important that those crossing the picket line were doing so in a location where that was readily and publicly observable. As well the information collected, used and disclosed by the union was limited:
"... the personal information collected, used and disclosed by the Union was limited to images of individuals crossing a picket line and did not include intimate biographical details. No intimate details of the lifestyle or personal choices of the individuals were revealed."
The Supreme Court found that 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". This was too high a price and disproportionate to the acknowledged benefits of the legislation.
Recognizing that an individual appearing in public does retain an interest in controlling her or his information, the Supreme Court found that in the context of the picket line the restrictions of PIPA were to "impede the formulation and expression of views on matters of significant public interest and importance".
The Supreme Court had previously recognized the fundamental importance of freedom of expression in the context of labour disputes and that"it is often the weight of public opinion which will determine the outcome of the dispute."
In such cases economic and political pressure are permitted as long as it does not rise to the level of a tortious or criminal act.
The Supreme Court did not give the union carte blanche and examined the specific expressive activity noting 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."
Unfortunately the Supreme Court did not give any guidance as to what expressive activity might cross the line such that the freedom of expression had gone too far. In the specific context the Supreme Court had noted that no intimate details of the lifestyle or personal choices of the individuals had been disclosed.
In the end result, the whole of PIPA was declared invalid. This declaration was however suspended for a period of 12 months to give the legislature time to decide how best to make the legislation constitutional. The Supreme Court did not sustain the constitutional exemption ordered by the Court of Appeal and instead merely quashed the Adjudicator's order.
The impact of this decision will require Alberta to consider the scope of the exemptions under its private sector privacy law. Of interest will be to see if the freedom of expression right under the constitution is considered for all players or merely in the labour relations context. As well British Columbia and Manitoba, which have similarly modeled laws, may also consider such an exercise.
Martin Kratz is a partner with Bennett Jones in Calgary, and leads the intellectual property practice. Stephen Burns is a partner with Bennet Jones in Calgary. His practice focuses primarily on outsourcing, IT procurement, information and privacy law, technology transactions and the protection and commercialization of intellectual property. For more infoormation, visit www.bennettjones.com.