Introduction
The Alberta Court of Appeal (the Court) recently released its decision in U.F.C.W., Local 401 v. Alberta (Information and Privacy Commissioner). The Court held that substantial aspects of Alberta's Personal Information Protection Act (the Act) unconstitutionally infringed on freedom of expression. Moreover, the Court invited the Alberta Legislature to amend the Act to bring it in line with the Canadian Charter of Rights and Freedoms (the Charter). This decision suggests that interpretations of the Act by the Alberta Privacy Commissioner (the Commissioner) may be narrower in the future in order to address Charter values such as freedom of expression.
Background
The United Food and Commercial Workers, Local 401 (the Union) represented workers at the Palace Casino in Edmonton. The Union videotaped its picket line during a strike in 2006, a standard practice in Alberta. The Union posted signs in the area stating that images of persons crossing the picket line might be placed on a website. The Union also used collected images for other purposes, including: gathering evidence that might become relevant to an investigation or legal proceeding, deterring violence, and supporting the morale of workers through satirical posters and leaflets. Complaints were filed with the Commissioner from several persons on the basis that their images were recorded without consent.
The Union conceded that recording persons crossing the picket line was "personal information" within the meaning of the Act (i.e., "information about an identifiable individual"), but argued that it was entitled to record these individuals and use their images without consent for several reasons:
- The recordings were for "journalistic purposes" and were exempt from the requirements of the Act pursuant to s. 4 of the Act;
- The recordings were collected in anticipation of legal proceedings before the Labour Relations Board and that consent from individuals was not required pursuant to s. 14 of the Act; and
- If the recordings were not permitted under the Act, the Act was overbroad and violated the Union's s 2(b) Charter right to freedom of expression.
The Adjudicator appointed by the Commissioner concluded that the Union was not entitled to videotape the picket line or use the information except for the limited purpose of anticipated legal proceedings and ordered the Union to destroy most of the information in its possession. The Union applied for judicial review of the Adjudicator's decision to the Alberta Court of Queen's Bench, alleging that its Charter rights had been infringed. Justice Goss quashed substantial aspects of the Adjudicator's decision and found that portions of the Act unconstitutionally infringed the Union's freedom of expression. The Attorney General of Alberta appealed that decision.
Decision
The Court held that significant portions of the Act and the Adjudicator's interpretation of the Act were unconstitutional because they infringed the Union's Charter right to freedom of expression.
Justice Slatter, for the unanimous Court, first addressed the issue of s. 4 of the Act, which exempts the collection and use of information when done for certain named purposes, such as "journalistic purposes", provided it is used "for no other purpose". He clarified this exemption, holding that:
- As long as the purpose for which information is collected or used is exempt under the Act, it does not matter if that purpose is an insignificant part of an organization's overall mandate. Even though the Union's purpose was not primarily journalistic, it was entitled to rely on the exemption if the organization was using information for that purpose.
- Information collected for journalistic purposes was not "tainted" and unusable if it was also collected for other purposes. The Union was still entitled to use the information it collected without consent, but only to the extent permitted by the Act, such as for journalistic purposes.
Justice Slatter rejected the lower court's approach of using a broad and expansive interpretation of the term "journalism" to prevent the Act from unconstitutionally interfering with the Union's freedom of expression. He held that the constitutionality of the Act should be addressed directly through application of the Charter. Finding that the Adjudicator's interpretation of the Act had offended the Union's right to freedom of expression, Slatter J.A. assessed whether the Act as a whole was justified under s. 1 of the Charter, holding:
Pressing and Substantial Problem. The objective of the Act was to address the potential misuse of personal information. Limiting the ability of organizations to collect, store, and use that information was rationally connected to achieve that objective.
Minimal Impairment. Constitutional problems under the Act arose because of its breadth. Examples of over-breadth in the Act include:
- Covering all "personal information" of any kind while providing no functional definition of the term. The definition of "personal information" (i.e., "information about an identifiable individual") is essentially circular and the Commissioner has not narrowed his interpretation of this term to make it compliant with the Charter;
- Defining "publicly available information" in an artificially narrow manner;
- No general exceptions for information that is personal but not private, such as activities occurring in public places;
- No general exemptions for information collected and used for free expression; and
- No exemptions for allowing organizations to reasonably use personal information that is reasonably required to operate their businesses.
Proportionality.The benefits of the Act did not outweigh its negative effects. While the protection of personal information is important, it is no more important than the rights of a union to engage in collective bargaining and communicate its message to the public. Furthermore, the privacy interest being protected was minimal – the individuals videotaped were in a public place and had warnings that their images were being collected: privacy expectations were low and did not justify a significant stifling of expression.
Justice Slatter held that the Commissioner could not justify the infringements on freedom of expression arising from the Act and he quashed the offending portions of the Adjudicator's decision. Noting that the courts did not have the institutional or legislative ability to rewrite the legislation, he declined to strike out or read down portions of the Act, explicitly stating that it was up to the Legislature to amend the Act to make it constitutional.
Conclusion
Organizations, individuals, and decision-makers will likely be perplexed by this decision because the Court did not strike down any portion of the Act. While the decision is significant, its direct impact on Alberta's privacy regime is unknown. Nevertheless, we believe that this decision indicates the following:
- The courts are open to reviewing decisions of the Commissioner through a constitutional challenge based on freedom of expression;
- If the Commissioner follows this decision, we can expect restricted interpretations of "personal information" and a heightened ability of organizations and individuals to collect and use such information for reasonable purposes connected to expressive activity; and
- If the Alberta Legislature heeds the comments of the Court, substantial amendments to the Act can be expected, although it is unknown whether such amendments will come before the Act's next comprehensive review which is to begin by July 1, 2015.
The Court's finding that the Act unconstitutionally interferes with freedom of expression also sets a precedent for future Charter challenges to other Canadian privacy legislation, including British Columbia's Personal Information Protection Act which was drafted in tandem with the Alberta Act, and the federal Personal Information Protection and Electronic Documents Act, upon which the Alberta Act is closely modelled.
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