Barry Sookman, Daniel Glover, Roland Hung and Keith Rose
SCC Strikes Down Alberta Privacy Legislation on Speech Grounds
This morning, the Supreme Court of Canada released Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, an important decision relating to the intersection of freedom of expression and protection of privacy and, in the process, struck down Alberta’s Personal Information Protection Act, SA 2003, c. P-6.5 ( “PIPA”). At issue were the privacy rights created by the PIPA and the right to free expression, which is constitutionally enshrined as section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).
The case arose from a strike in 2006, at the Palace Casino in Edmonton. Both the union and the employer videotaped the picket line, which was located in a shopping mall. The evidence on record suggests that recording picket lines was standard practice in Alberta at the time. The union posted notices at the site that recordings of people crossing the picket line might be posted to a web site.
Certain individuals, including officers of the employer, employees, and other members of the public, filed complaints with Alberta’s Information and Privacy Commissioner, under PIPA. The record indicates that the complainants were recorded crossing the picket line, but that no such recordings of any of the complainants were ever posted on the web site.
The Adjudicator concluded that the union did not have the right to collect and use the recordings. The union applied for judicial review and the chambers judge struck down certain portions of PIPA. [United Food and Commercial Workers, Local 401 v Alberta (Information and Privacy Commissioner), 2011 ABQB 415.] The Alberta Court of Appeal upheld the conclusion that portions of the Act were unconstitutional. [United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130.]
At its heart, the case raises two issues relating to the nature and scope of privacy protection: one is whether it matters that the information was collected in a “public” place; the other is whether it matters that the union’s use of the information had an expressive purpose.
The Court of Appeal engaged with both, finding that the union’s purpose was legitimate expression, protected by the Charter, and that PIPA’s failure to differentiate information which was “personal” but not “private” contributed to its over-reach. At paragraph 77, the Court of Appeal drew a series of important conclusions that were not limited to the labour setting, but impacted on the general overbreadth of PIPA, finding that it was unconstitutional because:
- It covers all personal information of any kind, and provides no functional definition of that term. (The definition of “personal information” as “information about an identifiable individual” is essentially circular.) The Commissioner has not to date narrowed the definition in his interpretation of the Act in order to make it compliant with Charter values.
- The Act contains no general exception for information that is personal, but not at all private. For example, the comparative statutes in some provinces exempt activity that occurs in some public places.
- The definition of “publicly available information” is artificially narrow.
- There is no general exemption for information collected and used for free expression.
- There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.
The SCC decision was unanimous in upholding the essence of this decision:
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 picket line.
[Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, para. 37.]
The Court accepted that both the collection and use of the information had protected expressive purposes. The union’s purpose was to persuade people to support the union and to deter people from crossing its picket line.
The core of the ruling is the finding that “PIPA deems virtually all personal information to be protected regardless of context.” PIPA was unconstitutional because:
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.
[SCC, para. 25]
At the request of the Information and Privacy Commissioner of Alberta and the Alberta Attorney General, the Court agreed to strike PIPA down in its entirety, rather than attempt to judicially craft an amendment to bring it into Charter compliance. As is common in such cases, the Court granted a 12-month stay of the declaration of invalidity, to give the legislature an opportunity to decide how to proceed.
The immediate question in the aftermath of this decision is how it will affect the other privacy statutes in Canada. It must be remembered that all general privacy legislation throughout Canada is structured on a sweeping definition of “personal information” that encompasses any information about an identifiable individual, regardless of whether it impacts on the “intimate biographical details” of a person’s life [SCC, para. 26]. As a result, all privacy legislation in Canada begins with a premise recognized by the Court of Appeal and Supreme Court to be overbroad. The real question is what these other laws can and will do to accommodate freedom of expression and other legitimate competing concerns.
Notably, Manitoba recently passed into law a privacy statute that is substantially similar to the 2009 version of PIPA. Manitoba’s new act shares the same definition of “personal information”, the same broad scope, applying to “every organization and in respect of all personal information.”, and substantially the same list of exemptions. [The Personal Information Protection and Identity Theft Prevention Act, s. 4.] It does not add any further balancing mechanism and, as such, one would have to conclude that it too would presumably fail a Charter challenge.
British Columbia’s Personal Information Protection Act is also highly similar to the Alberta PIPA in form and substance. It defines “personal information” in very broad terms. It applies to “every organization”. It does not have a “commercial” carve out. Its “journalistic” exception is very narrow. It will also be impacted by today’s decision. Even the Quebec Act respecting the protection of personal information in the private sector, which differs quite significantly from other private sector privacy laws in Canada in many ways, resembles the Alberta law on each of these three key points and hence could be subject to a similar Charter challenge.
While Manitoba and British Columbia may be the clearest cases, the decision is also likely to impact the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, (PIPEDA). The Court noted that PIPEDA is narrower than PIPA, because PIPEDA only applies to activities undertaken for commercial purposes.
If it did apply, it is not obvious that PIPEDA would fare better than PIPA in balancing freedom of expression against the need to protect an individual’s control over his or her personal information. Like PIPA, PIPEDA also features a very broad definition of “personal information” and a narrow regulatory definition of “publicly available information” which does not include information collected in a public place.
A very important final question is the impact the Supreme Court’s decision will have on the CASL anti-spam legislation, which is reportedly “at the starting gate” with an in-force target set for 2014. (See our colleague Barry Sookman’s blog “CASL marches towards starting gate”.) CASL significantly restricts the sending of commercial electronic messages and the transmission of computer programs. It has been argued that CASL will “chill” commercial speech. CASL’s constitutionality has also been questioned on the grounds of federalism and vagueness. The constitutionality of its punitive AMPs regime has also been questioned. The decision of the Supreme Court now gives even more support to the arguments that have been advanced (see, e.g., here, here) that CASL’s overbreadth cannot be justified in view of the Charter right to freedom of expression.
The Court has been careful not to suggest that one must automatically forfeit any claim to control over one’s personal information the moment one steps into a public space. However, the Court does demand a nuanced and contextual consideration of the collection and use of information in the public sphere. This analysis will need to consider both the nature of the information, including whether it reveals intimate biographical details about an individual, and the public interest in the expressive purpose at stake. This decision will have impacts in settings as diverse as the retail setting, where video surveillance is used for the legitimate purpose of theft prevention, and in the online setting, where less- and more- “intimate biographical details” of a person’s life are made publicly available by a person’s own choice, but have not to this point been deemed the subject of an implied consent.
Complicating this analysis is the fact that once the personal information is taken out of the control of the individual, it can’t be put back inside the bottle. The Court alludes to the risks flowing from ” developments in technology that make it possible for personal information to be recorded with ease, distributed to an almost infinite audience, and stored indefinitely”. Secondary and subsequent uses of the information may not have the same Charter-protected status, but would be practically difficult to restrain.
These questions will clearly be dealt with another day, on different facts. However, the Court’s message to policy-makers is clear: “both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance.”