The Supreme Court of Canada has agreed to hear a case that deals
with balancing privacy rights against constitutional rights to
freedom of expression.
In United Food and Commercial Workers, Local 401 v. Alberta
(Attorney General), 2012 ABCA 130, the Court of Appeal of
Alberta suspended application of the Personal Information
Protection Act (PIPA) to activities of a union, finding PIPA
infringed the union's Charter rights to free expression. The
union video recorded people crossing a picket line at Palace Casino
in Edmonton, and posted signs warning that images of people
crossing the picket line might be placed on a website called
The complainants included employees and officers of Palace
Casino, and members of the public. However, no recordings of any of
the complainants were actually posted to the website. The union
argued that it was entitled to record persons crossing the picket
line for "journalistic purposes", which are activities
outside of PIPA, or the recording was in anticipation of legal
proceedings or investigations arising out of the strike. If the
recording was not otherwise permitted, the union argued that PIPA
is too sweeping in its reach in violation of the union's
The Court of Appeal found that the union was not primarily
engaged in a journalistic activity. The Court found that since PIPA
contains no general exemption for forms of expression that are
constitutionally protected, PIPA's constitutionality should be
analyzed directly, not indirectly through an artificial screen of
journalistic purposes. The Court went on to consider the
constitutionality of PIPA requiring the union to obtain consent to
the collection, use, and disclosure of images of people crossing
the picket lines. The Court found a prima facie breach of the
Charter right to free expression, and that the infringement was not
justified in the circumstances. The Court commented that at para.
Individuals undoubtedly do have an interest in how their images
are used. Members of the public cannot, however, have a reasonable
expectation that they can live their lives in total anonymity.
People do not have a right to keep secret everything they do in
public, such as crossing picket lines. There is no recognized right
to withhold consent to the dissemination of information about
unpleasant conduct. Holding people accountable for what they do or
do not do in public is a component of the right to free
The Supreme Court granted leave to appeal, and so will consider
what balance should be struck between freedom of expression and
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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