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Privacy at Too High a Price Supreme Court of Canada Rules

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The Supreme Court of Canada has just released the much anticipated decision in Information and Privacy Commissioner, et al. v. United Food and Commercial Workers, Local 401. The case is also known as the Palace Casino case.

The Supreme Court has upheld the invalidity of provisions of Alberta’s private sector privacy legislation, providing the government of Alberta 12 months to make changes to the legislation to recalibrate the balance of freedom of expression and privacy.

The core of the case was to determine whether the narrow exemption in Alberta’s Personal Information Protection Act (PIPA) for the collection, use and disclosure of personal information for “journalistic purposes and for no other purpose” and the very narrow exemption for “publicly available” information was a reasonable limit in a free and democratic society on section 2(b) of Canada’s Charter of Rights and Freedoms (Charter), which protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

As followers of Canadian privacy law may understand, “publicly available” information is restricted in PIPA and other privacy statutes in Canada to a limited class of records such as voluntary listings in directories and governmental registries and, even then, is only exempt for narrow purposes. Unlike Canada’s federal legislation (the Personal Information Protection and Electronic Documents Act), the restrictions in Alberta’s PIPA apply to non-commercial activities as well as commercial activities.

The Supreme Court of Canada has concluded that the infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over the personal information. The context and specific nature of the infringement was important. The images were taken at a picket line. The union’s activity was not surrepticious. PIPA’s application restricted activities in the context of labour relations, where the Supreme Court has long been sensitive to protecting freedom of expression (much more so than in commercial activities).

Although the reasoning in the case has application beyond the picket line, the Supreme Court was careful not to diminish the very important privacy interests at stake. The Supreme Court unequivocally stated that individuals have privacy rights even while they are in public:

“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.”

Background

The case arose out of a labour dispute between workers and management at Palace Casino in Edmonton, Alberta. The union set up picket lines and took video and still pictures of individuals around the area of the picket lines. Signs in the area stated that images of those who the crossed picket line might be placed on a website entitled “www.CasinoScabs.ca”. In fact, it did not appear that the images were not distributed or published with one exception. The image of a vice president of the casino was placed on a mock “police mug shot” poster. It was also used in what the court of appeal described as “other satirical ways.”

Privacy Commissioner Orders Union to Stop

The Adjudicator for the Information and Privacy Commissioner concluded, among other things, that the union had not collected the images, which were personal information of the individuals, solely for journalistic purposes and, therefore, the exemption did not not apply. Nor did other exemptions dealing with collection personal information for legal proceedings, since that did not cover all of the images, such as the one of the vice-president that was used satirically. The Adjudicator ordered the union to cease collecting, using and disclosing images for any purpose other than the authorized investigation or legal proceeding and to destroy those that were improperly collected.

Alberta Courts Find PIPA Restrictions Unconstitutional

The Adjudicator’s order was judicially reviewed by the Alberta Court of Queen’s Bench and quashed on the basis that it permissibly interfered with the union’s freedom of expression. The case was further appealed to the Alberta Court of Appeal, which also concluded that the provisions of PIPA violated the Charter. The Court of Appeal concluded that PIPA was over-broad in the following ways:

    • “ 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 of Appeal held:

“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.”

 PIPA Exacts Too High A Price

The Supreme Court of Canada reaffirmed that privacy legislation in Canada is quasi-constitutional. The Court accepted that the there were demonstrable benefits to PIPA. PIPA responds to an important need in Canadian society to protect informational privacy of individuals in an era in which “the list of those who may access and use personal information has expanded dramatically and now includes many private sector actors.” The Court stated that “providing an individual with some measure of control over his or her personal information is intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values.” The Court characterized PIPA as seeking “to avoid the potential harm that flows from the permanent storage or unlimited dissemination of personal information through the Internet or other forms of technology without an individual’s consent.”

However, the Court also concluded that PIPA exacts too high a price when balanced against the importance of freedom of expression in the context of labour relations. The court concluded that PIPA limits the collection, use and disclosure of personal information (without 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.”

The problem was that there was no way to accommodate the important expressive purposes of unions engaged in lawful strikes resulting in a general prohibition of the union’s use of personal information to further its collective bargaining objectives unless it had consent of the individual.

PIPA’s interference with freedom of expression was problematic when the situational context was considered. The collection of the images was not surreptitious. It occurred at an open, public demonstration. The court concluded that a reasonable person crossing the picket line would have expected that their image could be caught and disseminated by others. These images did not, in the Court’s view, engage “intimate biographical details” of “the lifestyle or personal choices of the individuals”.

The Supreme Court of Canada has declared PIPA to be invalid but has suspended the declaration of invalidity for 12 months to provide the Alberta Legislature with an opportunity to re-balance the rights of freedom of expression and privacy in a constitutionally compliant manner.

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