The Supreme Court released a landmark decision today in the Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 case. In short, the Court found that while Alberta’s privacy legislation PIPA plays a vital role in protecting privacy, it violated the Charter right to freedom of expression by precluding the use of personal information in the labour context. The ruling is an appeal from a decision the Alberta Court of Appeal, which is summarized here.
The headnote of the case reads as follows:
During a lawful strike lasting 305 days, both the Union and the employer video‑taped and photographed individuals crossing the picketline. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website. Several individuals who were recorded crossing the picketline filed complaints with the Alberta Information and Privacy Commissioner. The Commissioner appointed an Adjudicator to decide whether the Union had contravened the Personal Information Protection Act (PIPA). The Adjudicator concluded that the Union’s collection, use and disclosure of the information was not authorized by PIPA. On judicial review, PIPA was found to violate the Union’s rights under s. 2(b) of the Charter. The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA.
Held: The appeal is substantially dismissed.
PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent. None of PIPA’s exemptions permit the Union to collect, use and disclose personal information for the purpose of advancing its interests in a labour dispute. The central issue is whether PIPA achieves a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression. To the extent that PIPA restricts collection for legitimate labour relations purposes, it is in breach of s. 2(b) of the Charter and cannot be justified under s. 1.
The purpose of PIPA is to enhance an individual’s control over his or her personal information by restricting the collection, use and disclosure of personal information without that individual’s consent. The objective of providing an individual with this measure of control is intimately connected to individual autonomy, dignity and privacy, self‑evidently significant social values.
But the Act does not include any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the legislation. This Court has long recognized the fundamental importance of freedom of expression in the context of labour disputes. PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations. Picketing represents a particularly crucial form of expression with strong historical roots. PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. This infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over the personal information that they expose by crossing a picket line. It is therefore not justified under s. 1 of the Charter.
Given the comprehensive and integrated structure of the statute, the Government of Alberta and the Information and Privacy Commissioner requested that the Court not select specific amendments, requesting instead that the entire statute be declared invalid so that the legislature can consider the Act as a whole. The declaration of invalidity is therefore granted but is suspended for a period of 12 months to give the legislature the opportunity to decide how best to make the legislation constitutionally compliant.
In the course of giving reasons, the Court highlighted the important social goals that comprehensive privacy legislation like PIPA play saying:
There is no dispute that PIPA has a pressing and substantial objective. The purpose of PIPA is explicitly set out in s. 3, as previously noted, which states:
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.
The focus is on providing an individual with some measure of control over his or her personal information: Gratton, at pp. 6 ff. The ability of individuals to control their personal information is intimately connected to their individual autonomy, dignity and privacy. These are fundamental values that lie at the heart of a democracy. As this Court has previously recognized, legislation which aims to protect control over personal information should be characterized as “quasi-constitutional” because of the fundamental role privacy plays in the preservation of a free and democratic society…
PIPA’s objective is increasingly significant in the modern context, where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes. There is also no serious question that PIPA is rationally connected to this important objective. As the Union acknowledges, PIPA directly addresses the objective by imposing broad restrictions on the collection, use and disclosure of personal information. However, in our view, these broad restrictions are not justified because they are disproportionate to the benefits the legislation seeks to promote. In other words, “the Charter infringement is too high a price to pay for the benefit of the law”: Peter W. Hogg, Constitutional Law of Canada (5th ed. Supp. (loose-leaf)), vol. 2, at p. 38-43.
The beneficial effects of PIPA’s goal are demonstrable. PIPA seeks to enhance an individual’s control over his or her personal information by restricting who can collect, use and disclose personal information without that individual’s consent and the scope of such collection, use and disclosure. PIPA and legislation like it reflect an emerging recognition that the list of those who may access and use personal information has expanded dramatically and now includes many private sector actors. PIPA seeks to regulate the use of personal information and thereby to protect informational privacy, the foundational principle of which is that “all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit”: Report of a Task Force established jointly by the Department of Communications/Department of justice, Privacy and Computers (1972), at p. 13.
Insofar as PIPA seeks to safeguard informational privacy, it is “quasi-constitutional” in nature: Lavigne, at para. 24; Dagg, at paras. 65-66; H.J. Heinz, at para. 28. The importance of the protection of privacy in a vibrant democracy cannot be overstated: see John D. R. Craig, “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens” (1997), 42 McGill L.J. 355, at p. 360-61. As Chris D. L. Hunt writes in “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167, at p. 217, “[d]emocracy depends on an autonomous, self-actualized citizenry that is free to formulate and express unconventional views. If invasions of privacy inhibit individuality and produce conformity, democracy itself suffers.”
PIPA also seeks 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.
Finally, as discussed above, the objective of 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.
Notwithstanding the important role of PIPA, the Court found that its limitations were disproportionate to the benefits it promotes.
The price PIPA exacts, however, is disproportionate to the benefits it promotes. 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. As the Adjudicator recognized in her decision, PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes. Indeed, the Act does not include any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the legislation. As counsel for the Commissioner conceded during oral submissions, PIPA contains a general prohibition of the Union’s use of personal information (absent consent or deemed consent) to further its collective bargaining objectives. As a result, PIPA deems virtually all personal information to be protected regardless of context.
But the extent to which significant values were actually impaired in the context of this case must be kept in context. The personal information was collected by the Union at an open political demonstration where it was readily and publicly observable. Those crossing the picketline would reasonably expect that their image could be caught and disseminated by others such as journalists, for example. Moreover, the personal information collected, used and disclosed by the Union was limited to images of individuals crossing a picketline and did not include intimate biographical details. No intimate details of the lifestyle or personal choices of the individuals were revealed.
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.[PIPA’s deleterious effects weigh heavily in the balance. What is of the utmost significance in our view is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations. These purposes include ensuring the safety of union members, attempting to persuade the public not to do business with an employer and bringing debate on the labour conditions with an employer into the public realm. These objectives are at the core of protected expressive activity under s. 2(b)…
This conclusion does not require that we condone all of the Union’s activities. The breadth of PIPA’srestrictions makes it unnecessary to examine the precise expressive activity at issue in this case. It is enough to note 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. To the extent that PIPA restricted the Union’s collection, use and disclosure of personal information for legitimate labour relations purposes, the Act violates s. 2(b) of the Charter and cannot be justified under s. 1
While the case focused on the interplay between privacy values and Charter values only in the labour context, it will very likely be applied in other cases where other restrictions imposed by privacy legislation in Canada potentially conflict Charter values. It will likely also have impacts on other cases where legislation that restricts other forms of commercial freedom of speech, such as CASL, are challanged.