In 2006, the United Food and Commercial Workers, Local 401 (the
Union) set up picket lines around the West Edmonton Mall casino,
where some of their members worked. The Union video-taped and
photographed the picketing in order to publicize images of certain
individuals who had crossed the picket lines. Several of these
people complained to the Information and Privacy
Commissioner (the Commissioner).
One of the Commissioner's adjudicators found that the
Union, having collected personal information, was therefore subject
to PIPA, which applies to all organizations and generally prohibits
the collection, use and disclosure of personal information without
an individual's consent. The adjudicator held that the
Union had violated PIPA by not obtaining consent to use the images
of the individuals passing the picket lines.
The Union appealed to the Court of Queen's
Bench. While conceding that it had collected personal
information and used it intentionally, the Union argued that it was
exercising its right to freedom of expression and that certain
exemptions in PIPA were unconstitutional to the extent the
provisions were too narrowly-defined and infringed on its Charter
right to freedom of expression.
The Union focused on two exemptions to the application of PIPA,
specifically where the information collected, used or disclosed
1) "publicly available"; or
2) "for journalistic purposes and for no other
The Union argued that recordings of its picket lines should have
been exempted from PIPA because any passing individuals could not
have had a reasonable expectation of privacy given that they were
recorded in public. The Union also argued that the fact that
it had an interest in the outcome of the strike (and thus an
interest in the collection, use and disclosure of the information
beyond simple journalism) should not prevent it from being able to
rely on the exemption for journalistic purposes.
The judge held that a narrow definition of "publicly
available" information would infringe the Union's
Charter rights by precluding the Union not only from collecting
images in a public setting, but by preventing the Union "from
describing in words what happens in public" if the information
contained personal information.
According to the Court, the complainants in this case had no
reasonable expectation of privacy. "They were at not just a
public place, but a public demonstration with important political
and social implications." As such, the judge found that there
was no rational connection between the goal of the protection of
individual privacy and the method of restricting the recording of
images at a public demonstration. By way of contrast, she noted
that privacy legislation in British Columbia contained exemptions
for personal images recorded at voluntarily attended public
gatherings (e.g. sporting events).
The judge also found the phrase "and for no other
purpose" in the journalistic exemption too restrictive and
therefore unconstitutional. Any non-media organization, such as the
Union, that engaged in journalism would have some other additional
purpose and would never fall within the exception. The judge
noted that "the requirement that an organization's
only purpose be journalistic is an extreme, almost draconian,
limitation on freedom of the press."
Unable to read the impugned provisions in a manner consistent
with Charter values, or to find any Charter justification for these
breaches, the judge quashed the adjudicator's decision to
the extent that it relied on the impugned provisions. She
further issued a suspended declaration of invalidity with respect
to the "publicly available" exemption, with an immediate
carve-out for information gathered at trade union picket lines, and
declared the phrase "and for no other purpose" in the
journalistic exemption to be invalid.
This decision is especially interesting as PIPEDA contains very
similar exemptions for the collection, use and disclosure of
personal information: (i) when the information is publicly
available, or (ii) when the information is used for journalistic
purposes and not for any other purpose.
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