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
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
1 2012 ABCA 130.
2 SA 2003, c P-6.5; also see theOntario
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.
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