Teresa Scassa - Blog

Wednesday, 06 June 2012 09:18

Privacy and Freedom of Expression: A recent decision of the Alberta Court of Appeal

Written by  Teresa Scassa
Rate this item
(0 votes)

The recent Alberta Court of Appeal decision in United Food and Commercial Workers, Local 401 v. Alberta (Attorney General) raises interesting issues regarding the relationship of data protection legislation to the constitutionally guaranteed freedom of expression.

The dispute arose after a union representing striking casino workers set up a picket line at the mall entrance to the casino. As part of the picketing activity, the Union videotaped the picket line and also took still photographs of persons crossing the line to enter the casino. Signs posted nearby indicated that photographs and videos might be featured on strike-related website. Different things were done with the images; some were posted online on the union’s website, and a still photo of the Casino Vice-President was used in unflattering ways in the Union newsletter and on leaflets. Following a complaint by some of the filmed individuals, an adjudicator under Alberta’s Personal Information Protection Act (PIPA) found that the photos and videos constituted personal information and that it had been collected, used and disclosed without notice or consent, as required by the Act. She also found that the exception to the application of PIPA for personal information that is collected, used or disclosed for “journalistic purposes and no other purpose” did not apply because the Union had multiple purposes for its actions, most of which were not journalistic. She found that the Union could argue that the information was collected, used or disclosed for the purposes of a possible investigation or legal proceeding, as disputes often broke out on picket lines. However, she ruled that the relevant exception would only be available if notice had been given of this purpose for collection. According to the adjudicator, the scope of this exception, if it had been available, would not have extended to the publication of the materials on the website, or the use of the still photos in the newsletter and elsewhere.

The Union sought judicial review of the decision, arguing in particular that their Charter right to freedom of expression had been infringed. Justice Goss of the Alberta Court of Queen’s Bench agreed, and she ordered that the regulation defining “publicly available information” be struck down for being under inclusive, and that the words “and for no other purpose” found in the exception to the Act for journalistic purposes should also be struck down. She also ordered a temporary suspension of invalidity to permit the Alberta legislature to address the defects in the legislation.

The Attorney-General of Alberta appealed this decision to the Alberta Court of Appeal. Although the Court of Appeal agreed with Justice Goss that PIPA posed certain constitutional issues, it disagreed with her as to the source of these issues and the appropriate remedies. It rejected the conclusion that the regulations defining “publicly available information” were relevant, observing correctly that “[u]nder the Act, “personal” information is not the same as “private” information” (at para 10). It spent more time on the s. 4(3)(c) exception to the application of the Act where information is collected, used or disclosed “for journalistic purposes and for no other purpose.” The Union had argued that posting the information on its website or in its pamphlets or newsletters served journalistic purposes, and that the consent of the photographed individuals should not have been required.

The Court of Appeal noted that it was possible to give this provision effect in two ways. The first would be to find that any information that was collected for journalistic purposes as well as other purposes was entirely tainted by those other purposes, and thus could not qualify for the exception. The second would be to find that the information could be collected, used or disclosed without consent for journalistic purposes, but consent would have to be obtained for any other purposes. The Court preferred the latter interpretation, noting that organizations may have many different objectives and purposes. It wrote: “even though the union’s purpose is not primarily journalistic, to the extent that it does engage in journalistic activities it is entitled to rely on the exemption in the Act for that purpose.” (at para 52) Because this approach was adopted, the Court found it unnecessary to rule (as had Justice Goss) that the terms “and for no other purpose” in s. 4(3)(c) were unconstitutional.

The Court next considered the scope of the exception for journalistic purposes in order to determine whether the Union’s activities were captured by it. It opted for a relatively narrow interpretation. It found that the Union’s activities in filming the picket line were not primarily journalistic, but rather focused on “labour relations, collective bargaining, and the economic dynamics of a strike.” (at para 57). It noted: “Just because the union might have to communicate with its members and the public about the strike in order to accomplish its labour relations objectives does not turn the whole exercise into journalism.”(at para 57). The Court was of the view that it was not appropriate to cram the union’s activities into “journalism” in order to conduct a constitutional assessment. Rather, the issue should be whether PIPA, by creating barriers to the Union’s expression in the context of a strike, cast an appropriate balance between the goals of protecting personal information and the freedom of expression.

The jurisprudence is clear that picketing is an expressive activity that is also linked to the freedom of association. The Court of Appeal acknowledged that the decision of the adjudicator in this case did not impact on the right to picket. However, it did place limits on what could be done with photos and recordings made of the picket line activities. According to the Court, recording and distributing images and videos is an activity directly related to the purposes of picketing, which has both an informational and a dissuasive component. Because recordings of people crossing the picket line “spreads news of the picket line to a wider audience . . . [and] tends to increase the pressure on those who might be tempted to cross the picket line” (at para 64), it constitutes expressive activity. Although there is a coercive element to this type of expression, the Court observed that unpleasant speech is protected by the constitution. It stated: “so long as there is no promotion of violence or other illegal activity, a reasonable amount of psychological pressure may be brought to bear on all those involved.” (at para 66)

Because the recording and dissemination of images of people crossing the picket line is expressive conduct, the Court of Appeal concluded that the adjudicator’s decision that the images could not be collected, used or disclosed without consent, violated the Union’s freedom of expression rights. The Court accepted that PIPA served a pressing and substantial objective (protecting against the misuse of personal information), and that placing limits on the collection, use and disclosure of personal information was rationally connected to that objective. However, it found that there was no proportionality in the legislation because it was not drafted “in a manner that is adequately sensitive to Charter rights.” (at para 73). The Court’s comments on the elements of overbreadth of PIPA are interesting.

In the first place, the Court suggests that PIPA is overbroad for having “no functional definition” of the term “personal information”. Yet the core of the definition (“information about an identifiable individual”) is essentially shared by private and public data protection statutes across Canada. According to the Court, it is necessary for the Commissioner to narrow this definition in order to make it compliant with Charter values. However, the structure of the legislation is such that, although the definition is broad, the Act contains many exceptions to its application or to the requirements of consent for collection, use or disclosure of personal information in particular contexts or circumstances. It is not at all clear that the definition is the problem. The court may be looking for a definition that would exclude information about people in public places, yet such an exception to the application of the law (as inadvisable as it might be) could be created without changing the definition. It should be noted that shrinking the scope of the definition might also mean that the legislation would no longer qualify as “substantially similar” to PIPEDA.

The objection to the definition of personal information is thus closely linked to the Court’s second objection, which is that PIPA does not contain a general exception for information “that is personal, but not at all private”. Without citing any examples, the Court claims that “the comparative statutes in some provinces exempt activity that occurs in some public places.” (at para 73). It is not clear to what the court is referring, as the only other provinces with private sector data protection statutes are B.C. and Quebec, and neither statute has the kind of exemption described. The court is most likely referring to statutes in some provinces which create torts of invasion of privacy, and which set certain contextual boundaries for the torts. The situations are not at all equivalent. It is entirely appropriate that an individual’s ability to allege an invasion of their privacy be considered in light of circumstances that include whether they were engaged in activity in a public place. However, the data protection context is different. Data protection laws protect individuals against the collection, use and disclosure of their personal information by private sector actors. There is no obvious reason why an exception to the law should be carved out to permit companies to cull personal information about individuals from multiple sources regarding their movements in public spaces. It is important to note that video surveillance cameras and cell phone location information could both fall within this category of information.

The Court also objects to the “artificially narrow” definition of “publicly available information”. This objection is also problematic. The publicly available information exception is narrowly crafted, and is limited to things such as public telephone directory listings, public government registries, court and tribunal records, and the like. The exception is only available where the information is used for the purposes for which it was made publicly available, and where the collection, use or disclosure being made is for purposes which a reasonable person would consider appropriate in the circumstances. In all cases, the categories of publicly available information are ones where it could be said that the individual has either consented to the information becoming public (for example, directory listings only constitute publicly available information where the individual has been given an option to delist their number), or where the government has mandated by law that such information is to be public (in the case of registries, or court decisions). Information published in a newspaper, magazine or other publication is only publicly available information if “it is reasonable to assume that the individual that the information is about provided that information” (PIPA Regulation, s. 7(e)(ii).) Here again, one finds the notion of consent to a specific use of the information. The exceptions are crafted narrowly because to do otherwise would substantially disrupt the balance in the Act, making all manner of personal information open to collection, use or disclosure without consent. Expanding the definition of publicly available information to include activities in public lacks both the consent element and the specific purpose as a limiting condition.

The Court also objects to the fact that there is “no special exemption for information collected and used for free expression”. In an article critical of the wording of the journalistic purposes exception, I consider a number of problems with the journalistic purposes exception. I have argued that indeed the formulation in Quebec’s private sector data protection legislation is broader than that used in PIPA or PIPEDA, as it refers to journalistic information that is communicated for “the legitimate information of the public”, rather than for the more obscure “journalistic purposes”. This gives somewhat more scope to the exception. However, I note that the effect of the Quebec exception is to permit the Commissioner to consider whether a communication was for “the legitimate information of the public”. In other words, it does not function as an outright exception to the application of the Act (as does the journalistic purposes exception). Rather, it allows the Commissioner to consider the scope and manner of the communication in order to determine whether the balance between freedom of expression and privacy has been appropriately struck. Given the significant developments in the new media, it may well be time to revisit the journalistic purposes exception in data protection laws; this must be done, however, in a thoughtful and considered manner.

Finally, the Court objects to the fact that “there is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their business.” (at para 73). This is puzzling since this seems to be a central purpose of data protection legislation. The statute as a whole is a scheme designed to permit just that – while at the same time giving individuals some right to control how their personal information is collected, used and disclosed.

Ultimately the Court wisely chose to simply quash the decision of the adjudicator, rather than to declare any portion of the statute unconstitutional. According to the Court, it is up to the legislature “to decide what amendments are required to the Act in order to bring it in line with the Charter.” (at para 81). Any such reform initiative by the legislature should be one that gives a much more careful consideration to the structure of the Act as a whole, and the complex web of interests that are already finely balanced.


Login to post comments

Canadian Trademark Law

Published in 2015 by Lexis Nexis

Canadian Trademark Law 2d Edition

Buy on LexisNexis

Electronic Commerce and Internet Law in Canada, 2nd Edition

Published in 2012 by CCH Canadian Ltd.

Electronic Commerce and Internet Law in Canada

Buy on CCH Canadian

Intellectual Property for the 21st Century

Intellectual Property Law for the 21st Century:

Interdisciplinary Approaches

Purchase from Irwin Law