By Shaun Brown
The Supreme Court of Canada issued a decision on November 15 declaring the Alberta Personal Information Protection Act (PIPA) unconstitutional in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (Alberta v. UFCW).
The respondent union in this case, which represents workers at the Palace Casino inside the West Edmonton Mall, had been capturing video and images of individuals who crossed the picket line during a strike. When a number of individuals complained that their images had been obtained without consent in violation of PIPA, the courts were required to balance the union’s right to freedom of expression against the privacy rights of individual complainants.
The Supreme Court unanimously agreed with the two courts below that:
- PIPA did not allow the union to capture video and images without consent;
- this prohibition resulted in a violation of the union’s right to freedom of expression as provided for under the Charter of Rights and Freedoms (Charter); and,
- the violation could not be justified under the Charter.
In other words, the union’s interest in freedom of expression outweighed the privacy interests of the complainants in this case. Rather than attempting to interpret PIPA in a constitutionally valid manner; i.e., by “reading in” an exception, the Supreme Court issued a declaration that the entire Act is invalid, and suspended the Act for 12 months to provide the legislature an opportunity to amend it.
This finding is not surprising. The Alberta PIPA and other Canadian privacy laws apply to a wide range of activities, due in large part to how broadly “personal information” is defined. The default position under privacy legislation is that collection, use or disclosure of personal information cannot occur unless consent is obtained or implied, or the activity falls within a defined exception. Furthermore, the concept of “publicly available” is so narrowly defined that the majority of personal information available to the public falls outside of exceptions for publicly available information. Finally, unlike privacy cases that arise under section 8 of the Charter, there is no need to demonstrate a “reasonable expectation of privacy” in order for personal information to be protected under privacy legislation. Reasonable expectations are effectively irrelevant from a legal perspective.
This broad, “prohibition-first” approach means that, despite the lengthy and complicated exceptions found within privacy laws, there are bound to be certain purposes that maybe should be exempted from the requirement to obtain consent but could not be conceived by legislatures when privacy laws were initially drafted.
It was inevitable that freedom of expression would eventually clash with privacy legislation in the courts.
This decision will not in and of itself result in a dramatic overhaul of privacy legislation, however, as the Alberta legislature will likely draft a precise exception that allows unions to undertake activities like those that took place outside the Palace Casino in compliance with PIPA. Furthermore, there is no reason to expect that Alberta v. UFCW will lead to a litany of successful challenges based on freedom of expression. Alberta v. UFCW involved the rights of unions to express themselves, an established and highly regarded right under Canadian law. Because the majority of complaints under privacy legislation are against for-profit organizations engaged in commercial activity, organizations would be required to argue that privacy laws present an unjustified violation of commercial expression. Despite being a protected form of expression, courts are less likely to find that limits on commercial expression under privacy legislation cannot be justified.
However, freedom of expression is not the only ground of attack. We have in recent years seen courts question and chip away at the definition of personal information (Leon’s Furniture Ltd. v Alberta (Information and Privacy Commissioner), 2011 ABCA 94) as well as commercial activity (State Farm Mutual Automobile Insurance Company v. Privacy Commissioner of Canada, 2010 FC 736). And, with so many provinces yet to enact their own privacy legislation, it seems to be only a matter of time until there is a substantial challenge to the ability of the federal government to regulate privacy within provinces under the constitution. If anything, this case reminds us that we are only beginning to explore the boundaries of privacy legislation.