Expression Trumps Privacy: UFCW v Alberta
The one-two punch of the Quebec government trying to control the student strikes and the Canadian Pacific Railway (“CPR”) being threatened with back to work legislature have turned Canadian attention to the state of union workers. The rights and privileges of workers when on strike have become a constant stream of headlines. Another controversial union issue came to a head in Alberta when the Alberta Court of Appeal decided United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130. While the right to picket became a matter of contention with the students in Quebec and with CPR employees, the issue in this case revolved around the rights and freedoms of picketing workers, particularly their freedom of expression and right to privacy. More specifically, must an individual’s right to privacy for publically crossing a picket line yield to the Charter’s guarantee of freedom of expression?
After collective bargaining broke down in 2006, unionized workers at Palace Casino in Edmonton went on strike. As is common practice in Alberta, both union and management videotaped the picket line. The union warned that individuals who crossed the picket line could have their images posted onto “www.CasinoScabs.” The union never posted recordings of any of the complainants on the site, though.
Individuals who crossed the picket line and had their images recorded subsequently filed complaints with the Commissioner under the Personal Information Protection Act, SA 2003, c. P-6.5 [PIPA]. After an inquiry, the adjudicator decided that the union had no right to collect and use the recordings. The union responded by applying for judicial review; they argued that the Commissioner’s decision violated the constitutional right to expression.
The chambers judge in the lower court agreed with the union, determining that certain portions of the PIPA did in fact violate the Charter’s. 2 freedom of expression and could not be justified in a free and democratic society. The Attorney General appealed this decision.
In 2003, the Alberta government passed PIPA in an effort to balance two competing values – the protection of information and the need to use it. S. 3 of PIPA articulates its purpose:
The purpose of this Act 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.
When there’s a balancing act, the one above, litigation is an inevitability. The purpose clause indirectly tasks the court in determining whether the balance is appropriate in the circumstances.
Moreover, s. 4 of PIPA indicates that the law applies to “every organization and in respect of all personal information.” It does not apply to public bodies because they are regulated by other legislation. There are a series of exceptions and exemptions that the PIPA allows for. Important for this decision are the exceptions made in s.4(3). They include:
“the collection, use or disclosure of personal information . . . if the collection, use or disclosure, as the case may be, is for journalistic purposes and for no other purpose”
While the journalism exemption was a matter of great debate in the lower judge’s reasoning, it took a smaller role in the Court of Appeal’s decision. The chambers judge interpreted “journalism” widely, and so the threat to post images to the site constituted journalistic endeavors. Justice Slatter insisted that he does not need to pin down the meaning of “journalism” in this case because the union was not primarily engaged in journalistic activity. In doing so, he framed this decision to be one about collective bargaining and strike dynamic.
Citing RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd.,  1 SCR 156, Justice Slatter went on to explain how labour picketing constitutes expressive content. Therefore, recording the picket line has an expressive purpose. He also found that there were several portions of the adjudicator’s order prohibiting the use of images that prima facie violated the union’s right to freedom of expression. With that, the judge went on to determine whether the violation was justified.
Even though the court found that there was a rational connection to the objective, the case primarily hinged on proportionality. PIPA was deemed to be overbroad in that:
- 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
Despite the court finding that the infringement on one’s freedom of expression was not justified, the court opted for an extremely limited remedy. Rather than striking down the invalid portions of the statute, the court issued a declaration that PIPA’s application to the activities of the union is unconstitutional, as it infringed on the union’s Charter rights. The adjudicator’s order was quashed. The judge opted to defer to the legislature to make the requisite changes so that the PIPA complies with the Charter.
A Narrow Reading
This decision is read extremely narrowly, from the categorization of “journalism” to the remedy offered. It will be interesting to see how this case will be applied to further cases related to privacy legislation. Much like PIPA, the Personal Information Protection and Electronic Documents Act, SC 2000 c-5 [PIPEDA] balances the need to exchange information with the need for individual privacy. PIPEDA also has no exception for information gathered under the umbrella of free expression. Perhaps that is why the court chose to read it as narrowly as possible, putting more of the burden on the legislature.
The government, accepting that the Alberta Court of Appeal found the PIPA to be unconstitutional, should reconsider the evolving nature of the Internet, and ultimately determine what sorts of exceptions it wants to implement. The balancing act in PIPEDA makes it only a matter of time before such litigation comes to the forefront. This decision, with its extremely narrow readings, may make for some applicability problems in future cases. But for now, in this particular case, expression trumps privacy.