Alberta’s privacy law deemed unconstitutional
Following a Supreme Court of Canada ruling, the Alberta government is working to strike the right balance between the right to privacy and the right to freedom of expression.
The Supreme Court found Alberta’s Personal Information Privacy Act (PIPA) violated a union’s right to free expression. A nine-member panel unanimously ruled the privacy legislation was unconstitutional, saying it violated the United Food and Commercial Workers (UFCW) Local 401’s right to free speech by blocking its ability to photograph and film workers crossing a picket line.
The picket line in question was part of a 305-day strike at the Palace Casino in the West Edmonton Mall in 2006. UFCW Local 401 and the company’s management-hired security firm filmed and photographed the picket line in front of the casino’s entrance. The union posted signs warning images of workers crossing the picket line could be posted online.
Complaints were made to Alberta’s privacy commissioner Jill Clayton, many of which cited PIPA. Clayton appointed an adjudicator to the case, who ruled the union was in violation of the privacy act. The case went on to the Alberta Court of Appeal and eventually the Supreme Court of Canada, where the legislation itself was thrown out as unconstitutional.
PIPA established that — as a general rule — organizations cannot collect, use or disclose personal information without consent. The purpose of the legislation is to enhance an individual’s control over his personal information, but the court ruled PIPA does not include any mechanisms that balance a union’s right to freedom of expression in the context of labour disputes.
Alberta now has one year to make changes to PIPA to bring it in line with the constitution.
"The court clearly recognized the importance of strikes as an expression of the democratic rights of workers. And they also made it clear that striking workers have a constitutionally protected right not only to engage in strikes but to use strikes as a platform to persuade both employers and the broader public of their issues and concerns," said Gil McGowan, president of the Alberta Federation of Labour.
In its ruling, the court referenced the strong historical roots of picketing in labour disputes and the important role personal information can play in legitimate, expressive purposes related to labour relations.
McGowan said the ruling was an emphatic one, and one that makes a strong statement of support for unions. While the Alberta Federation of Labour supports many provisions of PIPA as it currently exists, he said, privacy rights cannot be used to silence workers during strikes.
The fact that the legislation as a whole was ruled to be unconstitutional, McGowan said, shows how flawed the privacy act is.
"What the court was saying in this decision is the Alberta government didn’t just get it wrong, they got it badly wrong. They’re basically saying this piece of legislation was so deeply flawed that you have to go back to the drawing board."
Court documents show both the provincial government and Clayton’s office requested the entire statute be declared invalid so PIPA could be considered as a whole. Gwen Gray — one of the union’s legal representatives during the case — said the legislature’s comprehensive nature likely played a part in the decision.
"The act is pretty tightly interwoven and you can’t really pick out one section that you could amend easily to fix it," she said.
Gray explained one option — what she called a relatively simple approach to the changes that need to be made — is to alter PIPA so it only applies to commercial activities. Privacy Commissioner Clayton said her office is currently considering the court’s ruling before making a submission to the government.
"Our job is to enforce the legislation and advocate for the legislation," Clayton said. "I’m not ultimately responsible for writing the legislation."
Clayton did say her submission to the province would encourage the government to move quickly to make the necessary adjustments to allow PIPA to balance a union’s rights to freedom of expression with the individual’s rights to privacy.
"The legislation is scheduled for a review in 2015," Clayton said. "Twelve months is not a lot of time to make changes. At this point my preference is that we focus on addressing the concerns the court has pointed out to us rather than opening it up for a wholesale review."
While the Supreme Court’s ruling has made it clear the right to freedom of expression is an important one, the court also recognized the importance of privacy, Clayton said. In its ruling, the court confirmed the fundamental role privacy plays in a free and democratic society and recognized that by appearing in public an individual does not forfeit his or her interest in maintaining control over personal information.
"Decisions like this help us to establish the scope and boundaries of the legislation," Clayton said. "We have some direction in the context of this particular case on how to balance freedom of expression with privacy values. These are two very important values — I don’t think this will be the last case where these values come up against each other."
