Privacy legislation frequently pits the importance of safeguarding personal information against the constitutional protection of freedom of expression. In Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 (“UFCW”), the Supreme Court of Canada (“SCC”) has made an important statement about the permissible extent of privacy protection, and the importance of freedom of expression in statutory privacy protection regimes. As the digital collection and analysis of personal data increasingly dominates modern life, this recent decision is likely to have continuing relevance for any organization which collects and uses personal information.
Videotaping, the Internet and Strike Tactics in the Context of Privacy Legislation
In 2006, workers at the Palace Casino at West Edmonton Mall engaged in a lawful strike which lasted 305 days. During the course of the strike, the Union videotaped and photographed people crossing the picket line. The Union placed signs in the area warning people that images of people crossing the picket line may be placed on a website called www.casinoscabs.ca.
None of the complainant’s photos were actually placed on the website. An image captured of the vice president of the casino, however, was used in a mock “police mug shot poster” and in other satirical ways – although apparently with consent. Yet privacy statutes capture both the use and the collection of personal data. Therefore, even though the materials were never actually disseminated over the Internet, the Union’s activities fell within the application of Alberta’s Personal Information Protection Act (“PIPA”).
Nor did the fact that the photos and videotape were taken in public exempt the activities from PIPA. PIPA, like most privacy statutes, dispenses with consent for the collection of publicly available information. Yet the concept of publicly available information is narrowly defined under the relevant regulations. These regulations, which mirror the federal regulations under PIPEDA, limit the definition of publicly available information to certain information contained in directories and registries when used for a specific purpose, information contained in a judgment or record of a quasi-judicial body, and information contained in a magazine or news publication. As the Court of Appeal noted, “Under the Act, ‘personal’ information is not the same thing as ‘private’ information.”
The Appropriate Remedy for Offending Provisions in Privacy Legislation
All levels of court recognized the need to balance legislation intended to protect an individual’s privacy with constitutionally entrenched concepts of freedom of expression. All three levels of court– the Queen’s Bench, the Alberta Court of Appeal, and the Supreme Court – agreed that the Union’s collection of personal information conducted in support of its strike could not be restrained by PIPA.
No level of court had difficulty concluding that the videotaping and photographing of individuals near the picket line constituted free expression within the meaning of s. 2(b) of the Charter. Nor could the application of the Act’s restrictions to the Union’s activities be justified under s. 1. While the restrictions put in place by PIPA were rationally connected to its aim of protecting personal information, the means by which the Act protected this information were not proportionate.
The constitutionality of these restrictions on the Union’s speech was hardly a controversial issue. The key difference between these decisions, however, is the manner in which the differing levels of courts attempted to provide an outcome consistent with the rights guaranteed in the Charter. In the initial appeal of an adjudicator’s decision to the Queen’s Bench, The chambers judge attempted to use existing exceptions under PIPA in order to avoid the application of the statute and a finding of constitutional invalidity. She included the Union’s activities under the definition of “journalism”, which the Act exempts from its application entirely.
At the Court of Appeal, the court characterized the chambers judge’s attempt to remedy the breach of the Union’s constitutional right as “expansive and somewhat artificial.” Analyzing the situation as “journalism” was not particularly helpful, as not every piece of information posted (or intended to be posted) on the Internet qualifies as journalism. However, the Court of Appeal declined to strike out or read down the statute in any way. It instead issued a declaration that the application of the Act to the Union’s activities was unconstitutional.
In contrast, the SCC, at the request of the Government of Alberta and the Privacy Commissioner, declared the entire statute invalid to allow the legislature to redraft it as a whole.
The remedy granted by the Supreme Court shows the importance of well drafted, balanced privacy legislation. By invalidating the legislation entirely, rather than striking out portions or expanding definitions, the Court has allowed the Province to draft legislation which fits within the delicate framework in which privacy protection operates. Following the reasoning in UFCW, appropriate legislation would sufficiently recognize exceptions to the statutory scheme which allow entities affected by the Act to exercise their freedom of expression, while still preserving protections for individuals from organizations which seek to misuse personal data.
Moreover, a finding of invalidity more closely follows well established Supreme Court precedent. While the courts are the guardians of the Constitution and the individual rights protected by it, it is not up to the courts to provide details that would “render legislative lacunae constitutional.”
What’s Next for Privacy Legislation in Canada?
There are important implications for this Decision. Most apparent, the offending sections of PIPA closely resemble the federal privacy statute PIPEDA. Like PIPA, PIPEDA contains no exceptions which would permit a union to use personal information in order to gain an economic advantage during the course of negotiations.
As was noted by the SCC, PIPA was inspired by PIPEDA. Its stated purpose is “almost identical” to the federal act. However, the Court maintained that the scope of PIPA was considerably broader than that of PIPEDA. Unlike PIPEDA, PIPA does not restrict its application to activities undertaken for commercial purposes. Yet it is unclear how this restriction could render PIPEDA constitutional, as an extensive body of jurisprudence in Canada shows that the protection of freedom of expression includes commercial speech. While the scope of PIPEDA is more limited than its Albertan counterpart, it remains unclear if the similar provisions in the federal statute would survive a similar constitutional challenge.
Similar problems exist for a recent federal law popularly known as Canada’s Anti-Spam Law (“CASL”). CASL applies to a broad category of activities classified as “commercial electronic messages.” In order to soften the impact of the law, various exceptions have been created to its application through regulations. However, given the potentially broad scope of the legislation, CASL will probably lead to significant litigation once it is enacted. Once again, the courts will attempt to determine the proper balance between the harms addressed by such statutes and the rights restricted through the statutes’ application – and whether or not these protections are a proportionate response to the harms they seek to address.
David Bowden is an IPilogue editor and a JD Candidate at Osgoode Hall Law School.