Thursday, November 21, 2013

Alberta v UFCW - Privacy and Free Expression by Greg

As promised at Accidental Deliberations (and expanding on today's column), I'll comment briefly on Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 ("UFCW") , in which the Supreme Court of Canada struck down Alberta's Personal Information Protection Act for failing to give effect to the freedom of expression held by a union which sought to videotape a picket line and use the recording for labour relations purposes.

To be clear, the Supreme Court did not find in UFCW that freedom of expression necessarily trumps privacy rights in a labour context (or any other context). Instead, the PIPA was struck down because it failed to allow for any balancing at all between the competing interests, leaving no opportunity for a union (or any other organization) to assert Charter rights. Again, the crucial passage looks to be this one at para. 37-38:

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.  In our view, this infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline.

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 decision in UFCW focused on the particular right asserted by the Union, however, its scope potentially goes much further in defining the limits of privacy legislation.

The Supreme Court has previously established that freedom of expression generally applies to any non-violent attempt to convey meaning, including corporate advertising: see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927. As a result, there is no apparent reason why "commercial activity" - a key standard in the application of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 among other privacy laws - would serve as the boundary of constitutional protection for freedom of expression.

Moreover, the Supreme Court has also held that access to information (at least in government hands) may be constitutionally protected where it serves as a necessary precondition to meaningful expression: Ontario (Public Safety and Security) v. Criminal Lawyers' Association, [2010] 1 SCR 815 at para. 33. Based on this standard, the collection of other types of information (including personal information about individuals) might also be subject to protection if necessary to allow an organization to participate in a public debate - even if the purpose for such collection does not fit neatly and exclusively into the artistic and journalistic exemptions under existing privacy statutes.

It remains to be seen how far the protection of freedom of expression extends when actually weighed against privacy interests. But the Supreme Court appears to be requiring the availability of some forum in which to test whether a restriction on the collection, use and disclosure of personal information impedes upon an organization's freedom of expression (or other Charter rights). And since existing privacy legislation does not generally provide for such a forum, the steps Alberta takes in remedying the constitutional defects in PIPA may be followed in short order by other governments who have implemented private-sector privacy legislation.

[Update: For more commentary, see posts from David Fraser, as well as Daniel Michaluk and Paul Broad.]

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at if you require legal advice related to labour, employment or privacy issues.

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