The protracted tug-of-war between privacy interests and freedom of expression has once again made its way into the arena of labour relations. In UFCW-Can, Local 401 v Alberta,1 a decision released earlier this year, the Alberta Court of Appeal was asked to weigh in on the issue of picket line surveillance videos and ultimately shifted the balance in favour of the right to freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms (the "Charter").
Following a breakdown in collective bargaining, striking workers at the Palace Casino in Edmonton established a picket line at the employer's place of business. In keeping with common practice, both the union and the employer recorded much of the action at the picket line on video. However, the union also took the unorthodox step of posting signs which warned that videos of employees crossing the picket line might be uploaded to a website with the address "CasinoScabs.ca". As a result of the union's warnings, several employees who were filmed filed a complaint with the Privacy Commissioner claiming that the union had infringed their privacy rights under the Alberta Personal Information Protection Act ("PIPA").2
Specifically, the employees pointed to the provisions of PIPA which state that personal information cannot be collected, used or disclosed unless the individual to which the information pertains provides consent (subject to certain limited exceptions). Since the union never sought the necessary consents, the employees argued that the union was prohibited under PIPA from recording and uploading the videos onto the internet.
While the union conceded that the contents of the recordings were clearly "personal information", they argued that it was entitled to record and upload the videos for three reasons. First, the union submitted that the recordings fell outside the scope of PIPA because they were done for journalistic purposes. Second, they claimed that the recordings were permitted under PIPA because they were recorded for the purpose of a potential investigation or legal proceeding in connection with the strike. Third, they argued that the protections afforded by PIPA were unconstitutional because they infringed the union's right to freedom of expression.
The union's first two arguments were swiftly rejected by the Court on the grounds that the union had not made the videos primarily for journalistic, investigative or legal purposes. However, it agreed with the union that PIPA severely restricted the union's right to freedom of expression. The Court explained that the act of recording and distributing videos of picketing activities incorporates an expressive component because its purpose is to convey information about the labour dispute to a wider audience (in order to gain support for the union's cause) as well as to put social and economic pressure on the employer (by intimidating non-sympathetic parties into suspending their relations with the employer). By preventing the union from recording and uploading the videos of employees crossing the picket line, the union's right to freedom of expression under the Charter had been violated by PIPA.
The Court also held that the restrictions on expression imposed by PIPA were unjustifiable in a free and democratic society. While the Court acknowledged that the protection of personal information is important, it explained that individuals do not have the right to keep everything they do in public a secret; holding people accountable for public activities – including crossing a picket line – is a component of the right to freedom of expression.
The Court went on to explain that the privacy concerns held by the employees in this case did not outweigh the union's right to use the videos in order to achieve a favourable end to the strike. Specifically, the Court noted that privacy rights, though important, are no more important than the collective bargaining rights of workers and the communication rights of unions . On the facts of this particular case, the Court found that the privacy expectations were low, so limits to collecting and using video recordings were not justifiable. In other words, the Charter-protected right to freedom of expression took precedence over the onerous privacy-minded requirements of PIPA.
The Court concluded that the broadly-drafted restrictions were unconstitutional and struck down the relevant portions of PIPA. They therefore left the matter in the hands of the legislature to decide what amendments would be required in order to bring the statute in line with the Charter. The Privacy Commissioner has since sought leave to appeal to the Supreme Court of Canada.
Footnotes
1 2012 ABCA 130.
2 SA 2003, c P-6.5; also see the Ontario Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2012 McMillan LLP
