Alberta Court of Appeal Balances Privacy Rights Against Freedom of Expression

by Bennett Jones LLP
Contact

On April 20, 2012, the Alberta Court of Appeal released its decision in United Food and Commercial Workers, Local 401 v Alberta (Attorney General)1 clarifying the treatment of the statutory privacy rights created by the Alberta Personal Information Protection Act2vis-à-vis the right to free expression guaranteed by the Canadian Charter of Rights and Freedoms. In this decision, the Court held that a union's ability to, among other things, make and distribute recorded images of individuals crossing a picket line was protected as an expressive right under the Charter and trumped any such individuals' privacy rights under the Act. The Court, most notably, also held that the Act was unconstitutional, and that the protections afforded thereunder cannot be equated to being constitutional in nature.

Background

During a strike at the Palace Casino in Edmonton, the United Food and Commercial Workers, Local 401 Union (UFCW) took video and camera recordings of the picket line and posted signs in the area stating that images of those who crossed the picket line might be placed online. An adjudicator appointed by the Alberta Information and Privacy Commissioner under the Act held that the collection or use of personal information by the UFCW, other than for use in an investigation or legal proceeding, contravened the Act. The UFCW subsequently sought judicial review of this decision. Agreeing with the UFCW, the chambers judge concluded that the Act "purposely and directly" limited the UFCW's freedom of expression, and declared certain portions of the Act unconstitutional. The Attorney General of Alberta appealed this decision to the Alberta Court of Appeal.

The Court’s Decision

As the Supreme Court of Canada had previously held that the freedom of expression encompasses the ability to collect information that is to be distributed when the distribution constitutes an expressive activity, the Court of Appeal found that the prohibition of the UFCW's dealings with the recordings of its picket line was a direct infringement of its freedom of expression.

While the Court acknowledged the substantial importance of protecting society's reasonable expectations of privacy and limiting the misuse of personal information, it emphasized that the application of the Act must be sensitive to its impact on the Charter-protected right to free expression. Indeed, it held that the protection of personal information is no more important than collective bargaining, the rights of workers to organize, and the right of the union to communicate its message to the public.

In assessing the constitutionality of the Act, the Court held that the Act was over-broad on account of the following:

  • "It covers all personal information of any kind, and provides no functional definition of that term. ... 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."

Accordingly, the Court affirmed the chamber judge's order quashing the offending portions of the Adjudicator’s decision, and deferred to the Legislature of Alberta to make the appropriate amendments to the Act to bring it in line with the Charter.

Implications

The Alberta Information and Privacy Commissioner has sought leave to appeal the Court's decision to the Supreme Court of Canada.3 In the event that leave is not granted, this decision will circumscribe the privacy protections afforded under the Act, and will thus have a significant effect on this statute, along with other statutes that are substantially similar thereto.4 As a result, businesses are encouraged to: (i) monitor possible developments with respect to this decision at the Supreme Court and the Legislature of Alberta; and (ii) amend their privacy policies accordingly.

Notes
  1. 2012 ABCA 130.
  2. SA 2003, c. P-6.5.
  3. http://www.oipc.ab.ca/Content_Files/Files/News/NR_UFCW_SCC_Jun_4_2012.pdf
  4. For example the British Columbia Personal Information Protection Act, SBC 2003, c. 63 and the Personal Information Protection and Electronic Documents Act, SC 2000, c. 5.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.