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As we discussed in a blog post last year,
the Alberta Court of Queen's Bench recently struck down
provisions of Alberta's Personal Information Protection
Act (PIPA) that were found to infringe the right
to free expression under the Charter. The case
considered the activities of a union that had videotaped picketing
at the West Edmonton Mall casino in order to publicize images of
individuals that crossed the picket lines. At trial, the union had
relied on a number of arguments to justify its activities,
including the fact that PIPA does not apply to personal information
collected for journalistic purposes, as well as the exemption from
the consent requirement with regards to personal information that
is "publicly available". Ultimately, the trial court
found the provisions in question to be too narrow and, thus,
unconstitutional. In a recent decision of the Alberta Court
of Appeal, Justice Slatter agreed that the
application of PIPA to the union's activities infringed the
Charter.
In its constitutional analysis, the Court of Appeal concurred
with the trial court's finding that the picket line and its
related videotape recordings were an expressive activity.
Meanwhile, in considering the potential justifications for
infringement, the Court of Appeal found there to be a pressing and
substantial concern in the potential misuse of personal
information, as well as a rational connection between the
PIPA's provisions limiting the use of personal information and
the objectives of the Act.
The Court found fault, however, when it considered the
proportionality of the provisions to the legislative objectives.
Specifically, the Court asserted that PIPA exhibited substantial
over-breadth in a number of ways, including with respect to its
narrow definition of "publicly available" information,
its lack of a general exemption for information collected and used
for free expression, and the lack of an exemption allowing
organizations to reasonably use personal information required in
the legitimate operation of their businesses.
The Court of Appeal maintained that the salutary effects of PIPA
did not outweigh its deleterious effects. Specifically, the Court
found that "[w]hile the protection of personal information is
important, it is no more important than collective bargaining and
the rights of workers to organize. It is also no more important
than the right of the union to communicate its message to the
public." In this case, privacy interests were minimal, as
those who were videotaped were in a public place and crossing an
obvious picket line in the face of warning signs that their images
were being collected. Privacy expectations were therefore low, and
holding people accountable for what they do or do not do in public
was considered to be a component of the right to free
expression.
Ultimately, therefore, the Court of Appeal agreed with the trial
court's finding that specific provisions of PIPA infringed on
the Charter's right to freedom of expression. Notably, however,
the Court of Appeal varied the trial court's remedy. While the
lower court had invalidated the offending provisions, the Court of
Appeal found there to be no obvious way to amend the statute to
allow for its constitutionality. As such, the Court of Appeal
simply declared that the application of PIPA to the activities of
the union was unconstitutional.
In response to the decision, the Alberta Information and Privacy
Commission has now announced that it
will apply to the Supreme Court of Canada for leave to appeal. We
will be following the outcome of the leave application with details
to follow.
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