Alberta CA uses cyber-picketing case to raise fundamental doubts about scope of privacy regulation

The Alberta Court of Appeal dropped a bomb on April 30th by raising extremely broad questions about the constitutionality of Alberta’s commercial sector privacy statute in disposing of a dispute about the right of a union to take images of people who cross a picket line.

Last September the Alberta Court of Queen’s Bench held that the Alberta Personal Information Protection Act violated the right of expression guaranteed by section 2(b) of the Charter because it was disproportionate in restricting unions from engaging in “union journalism” relating to labour disputes and picket lines. The Court’s focus was relatively narrow though, and its Charter-based order focused on the breadth of a scope provision meant to protect journalistic activity and an exclusion for publicly available information.

The Court of Appeal first re-framed the expressive interest at stake as related to labour relations and not journalism. It then held that the statute interfered with this interest in a manner that could not be justified in a free and democratic society.

The Court’s proportionality analysis is remarkable in its breadth. It weighs the purpose of Alberta PIPA – protecting reasonable expectations of privacy, protecting expectations that one can control one’s own image and personal information and limiting the misuse of personal information – against the right of free expression in general. The Court says:

There is, however, a problem relating to proportionality. The constitutional problems with the Act arise because of its breadth. It does not appear to have been drafted in a manner that is adequately sensitive to protected Charter rights. There are a number of aspects to the over-breadth of the Act:

-It covers all personal information of any kind, and provides no functional definition of that term. (The definition of “personal information” as “information about an identifiable individual” is essentially circular.) The Commissioner has not to date narrowed the definition in his interpretation of the Act in order to make it compliant with Charter values.

-The Act contains no general exception for information that is personal, but not at all private. For example, the comparative statutes in some provinces exempt activity that occurs in some public places.

-The definition of “publicly available information” is artificially narrow.

-There is no general exemption for information collected and used for free expression.

-There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.

This appeal clearly demonstrates the impact that the Act can have on protected rights. The legitimate right of the union to express itself and communicate about the strike and its economic objectives have been directly impacted by the Adjudicator’s order. The appellant has not demonstrated why this heavy handed approach to privacy is necessary, given the impact it has on expressive rights.

Regarding remedy, the Court issued a declaration that the restrictive order at issue was unconstitutional and invited the Alberta legislature to “decide what amendments are required to the Act in order to bring it in line with the Charter.”

Look for a leave to appeal application in which the Alberta Commissioner is joined by her counterparts from other provinces at the leave to appeal stage.

United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (CanLII).

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