International Labor & Employment Law Committee Newsletter

Issue: September 2012

Editor: Tim Darby | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Canada Editor: Gilles Touchette | Asia and Oceania Editor: Ute Krudewagen

Canada

Use of Strike Images of Individuals by Union Protected Under Canadian Charter Right to Freedom of Expression, Trumping Provincial Personal Privacy Rights, Alberta Court Rules

Shannon L. Robinson, Norton Rose Canada LLP

A Union's use of images of individuals obtained during a strike trumps protection of personal information under the Province of Alberta's privacy legislation as a right to freedom of expression under the Canadian Charter of Rights and Freedoms, the Alberta Court of Appeal has held. An application for leave to appeal has been made to the Supreme Court of Canada.

The Decision of the Court of Appeal

In United Food and Commercial Workers, Local 401 v. Alberta (Attorney General)1 The Court accepted that it is well-established in Canadian jurisprudence that picketing has an expressive character that is protected under the Charter. Similarly, the Court accepted that recording and distributing images of the picket line served the purposes of informing and educating union members, other unions and the public about the strike, discouraging people from crossing the picket line, and spreading the news about the picket line. Thus, the Court held, making and distributing recordings and images of the picket line also had expressive value. Although the adjudicator's decision did not affect picketing in and of itself, it did prevent the Union from making and distributing images of the picket line. The infringement on the Union's right to freedom of expression therefore needed to be justified.

The Court accepted that protecting an individual's reasonable expectations of privacy and limiting misuse of personal information were pressing and substantial objectives that could justify an infringement on the right to freedom of expression. However, the Court found that Alberta's Personal Information Protection Act (PIPA) was overly broad and that its application was not sufficiently sensitive to the Charter-protected right to freedom of expression. The Court concluded that the following aspects were overly broad:

  • PIPAcovered all personal information of any kind, without providing any functional definition of that term. The Commissioner had not narrowed the definition to make it compliant with Charter values.
  • PIPA did not contain general exceptions for information that is personal but not at all private, such as activity that occurs in a public place.
  • The definition of "publicly available information" was artificially narrow.
  • There was no general exemption for information collected and used for free expression.
  • There was no exemption allowing organizations to use personal information that is reasonably required in the legitimate operation of their business.

Consequently, the Court held, the Union's right to express itself was directly impacted by the adjudicator's order and the adjudicator had not been demonstrated why 'this heavy handed approach to privacy is necessary.' Moreover, the Court found that protecting an individual's personal information was not more important than collective bargaining, the workers' right to organize, and the union's right to communicate its message to the public.

As a result, the adjudicator's order was quashed and the Court declared that the application of PIPA to the Union's activities was unconstitutional.

Background and Privacy Commission Adjudicator's Earlier Decision

In 2006, as part of strike action, the United Food and Commercial Workers, Local 401 videotaped and photographed the picket line outside of the Palace Casino in Edmonton. The Union also posted signs stating that images of individuals crossing the picket line might be posted online. In the end, one image of an individual crossing the picket line was posted online and an image of the casino's Vice-President was used in satirical images that were distributed in leaflets and in the Union's newsletter. Some of the individuals who crossed the picket line and whose images were recorded filed complaints with Alberta's Information and Privacy Commissioner under PIPA.

The adjudicator appointed by the Commissioner accepted that in collecting the video and camera images, the Union was collecting 'personal information' under PIPA. The adjudicator upheld the complaint on the grounds that consent had not been obtained as required under PIPAand ordered that, except where statutory exceptions applied, the Union was in breach of PIPA and must cease collecting the personal information for those purposes. (PIPA sets out and limits the adjudicator's powers, including the orders the adjudicator can make; the adjudicator does not have the power to order injunctions or damages, but rather the power to order a party to cease using the information.) Following a series of appeals, the issue finally reached the Alberta Court of Appeal.

Implications

In Canada, privacy legislation varies from one province to another and according to the nature of a business or organization. While this decision is not binding outside of Alberta, and the remedy granted is very narrow, it will likely have an impact in other jurisdictions should similar challenges be launched.

Other Federal and Provincial privacy statutes employ similar language to govern the collection and use of personal information, without recognizing an exception for the reasonable exercise of freedom of expression. The Court of Appeal's decision could result in legislators reviewing the current exceptions where consent is not required under the privacy legislation, or in privacy commissioners refining their interpretation of "personal information." This could lead to a broadening of the definition or concept of personal information that can be collected and used by organizations.

12012 ABCA 130.

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