Legal Alert: SCC Decides Union's Freedom of Expression Trumps Individual Privacy Rights

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Legal Alert: SCC Decides Union’s Freedom of Expression Trumps Individual Privacy Rights

November 15, 2013

By David Fraser, at McInnes Cooper

On November 15, 2013 – in an anxiously awaited and groundbreaking decision – the Supreme Court of Canada decided Alberta’s private sector privacy legislation is unconstitutional because it infringes a union’s Charter right to freedom of expression by prohibiting it from videotaping and photographing people crossing the picket line. The decision has reach across Canada: both the federal and the BC privacy legislation contain sections effectively identical to the problem sections of Alberta’s legislation.

In Information and Privacy Commissioner et al v. United Food and Commercial Workers, Local 401, the Union representing striking and picketing Alberta employees video-recorded and photographed individuals crossing the picket line. It displayed the images on posters, newsletters and leaflets and distributed them over the internet. Some of the recorded individuals complained to the Alberta Information and Privacy Commissioner under the Alberta Personal Information Protection Act.

The SCC decided the sections of the Act prohibiting the Union from collecting, using and disclosing such photos and recordings without the individuals’ consent unduly limits the Union’s ability to communicate its message to the public and other interested parties – and infringe the Union’s Charter right to freedom of expression without justification:

Limits Disproportionate to Benefits. The limits the Act imposes are disproportionate to its benefits. It limits the collection, use and disclosure of personal information (except with consent) without regard for its nature, the purpose for the collection, use or disclosure, and the situational context. In particular, the Act has no mechanism to accommodate the “expressive purposes” of lawfully striking unions – or to balance a union’s constitutional right to freedom of expression with the interests it protects. Its general prohibition of the Union’s use of personal information (absent consent) to further its collective bargaining objectives effectively deems virtually all personal information protected – regardless of context.
Context Matters. In this context, significant values were not actually impaired: the Union collected the personal information at an open political demonstration, easily seen by the public. People crossing the picket line would “reasonably expect” others – like journalists – could capture and distribute their image. The personal information the union collected, used and disclosed did not reveal intimate biographical, lifestyle or personal choice details. A person does not “automatically forfeit” his control over his personal information by appearing in public but in this context, the Act’s restrictions “impede the formulation and expression of views on matters of significant public interest and importance.”

At the Province of Alberta’s request, the SCC declared the entire Act invalid but suspended the declaration for 12 months to avoid a vacuum and give the legislature time to change it.

The Federal Personal Information Protection and Electronic Documents Act and the BC Personal Information Protection Act contain sections effectively identical to the problem sections of the Alberta Act – and as a result of this decision, they are likely unconstitutional as well. Both the federal Parliament and the BC legislature can be expected to review their respective Acts and amend them.

Click here to read the SCC’s decision in Information and Privacy Commissioner et al v. United Food and Commercial Workers, Local 401.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2013. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Click here to request our consent.

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