Privacy laws are too broad – Alberta statute ruled unconstitutional 

publication 

November 2013

Privacy Bulletin

In a significant decision affecting the permissible scope of protection under Canada's private sector privacy laws,1 the Supreme Court of Canada has determined that, in a labour relations context, the Alberta Personal Information Protection Act ("PIPA") infringes the constitutional right to freedom of expression under the Canadian Charter of Rights and Freedoms and therefore must be struck down. The Court delayed making its order operative for a period of 12 months, thereby permitting the Legislature to amend PIPA so that it does not offend the Charter. In other words, Alberta still has a privacy law, and will continue to do so provided that its scope is narrowed so as not to offend the constitutional right to freedom of expression.

The significance of this court decision is potentially far-reaching. Firstly, the Alberta PIPA is almost identical to the British Columbia private sector privacy law and is similar in many respects to both the federal law, the Personal Information Protection and Electronic Documents Act ("PIPEDA"), and the Quebec Private Sector Privacy Act.2 Therefore, the Court's indicated limitation on the permissible scope of privacy laws – that they may not infringe the constitutional right to freedom of expression – is likely to apply to those laws as well.

More importantly, the Court suggests that the all-encompassing scope of privacy protection stipulated by the privacy laws is overbroad and should be subject to limitations. The Court considered some of the limitations contained within the express content of the laws, but found them wanting.

The specific facts of the case involved a strike at the Palace Casino in Edmonton. The union, and the employer, videotaped persons crossing the union's picket line, apparently a common practice in Alberta. As among other uses of the videotape, the union threatened to post images of those crossing the picket line on a website called "casinoscabs.ca" Certain of the individuals who were videotaped filed complaints with the lberta Information and Privacy Commissioner to the effect that such recording and potential uses of their images contravened PIPA.

The Adjudicator appointed by the Commissioner concluded that PIPA applied and prohibited the subject activity. The Adjudicator did not have the power to determine the constitutionality of the law and did not address this issue. However on judicial review of her decision and on the subsequent appeal to the Alberta Court of Appeal, the Adjudicator's decision was quashed and the Act's application to the subject activities was ruled unconstitutional.

Both the Adjudicator and each of the courts hearing the case considered various potentially applicable exceptions under the law which either would have narrowed its application to not include the videotaping, or would have avoided the need for the individuals' consent to their being videotaped. In all instances the exceptions were found not to apply (or to have only limited application). The Supreme Court focussed less on the potential applicability of exceptions than on the overall thrust of the law; however the fact that none of the potential exceptions applied was considered as a critical element in the Court's concluding that the law, as a restriction on freedom of expression, could not be saved by the Charter's s.1 caveat permitting reasonable limitations in a just and democratic society.

All of the courts as well as the Adjudicator accepted that the videotaping was for an "expressive purpose" – namely to inform the public and dissuade people from crossing the picket line. In considering the constitutional issue, the courts recognized that this was an activity protected by the Charter's s.2(b) right to freedom of expression and that PIPA limits this activity. They then turned to s.1 of the Charter to determine whether the limitation was saved if it could be characterized as a reasonable limit demonstrably justified in a free and democratic society. In coming to the conclusion that the benefits of the law do not outweigh its costs in terms of limiting freedom of expression, the Court conducted an insightful analysis of both the origins of our modern privacy laws as well as their breadth.

Origin of the privacy laws

The Court noted that the origin and purpose of the laws are focused in the international movement, arising in the 1970s, towards giving individuals "better control over their personal information", particularly in the context of the potential of automated technologies to amass and store huge quantities of data.3 The policy response, which became embodied in European and international standards and, ultimately, the Canadian private sector privacy laws, was to provide individuals with some measure control over their information. The Court noted, correctly, that the legislation enacted to address this policy requirement was very broad:

  • the definition of "personal information" is practically unqualified – "information about an identifiable individual";

  • the laws apply to all "organizations" (broadly defined), noting that, unlike PIPEDA, PIPA, extends to organizations' non-commercial activities;

  • the exceptions to the laws' otherwise broad scope were very limited; in particular the scope for publicly available information, for which collection does not require consent, was narrowly and specifically defined (essentially that in telephone and business directories, public registries and printed public media).

Policy behind breadth of the laws

By way of comment, it is noted that in the early policy deliberations that led to the "Fair Information Principles" ("FIPs") as ultimately embodied in the laws, distinctions among characteristics in the nature of personal information – such as between sensitive and non-sensitive, and private and public – were rejected, there being a sense that the only feasible definition was any information which relates to any data subject who is, or can be identified. The breadth of the protection was initially motivated by the data processing potential of the emerging technologies, as well as the fact that the risks involved with the new databases were difficult to assess. The concepts embodied in the FIPs were also meant to remain relevant even in the face of continuous technological improvements – all leading to the adoption of a very broad definition of personal information. A broad definition is reflected in earlier judicial decisions4 and is consistent with the perspective of the federal Office of the Privacy Commissioner which indicates that "a broad definition is in order".5 Information will be "about" an individual when it is not just the subject of that individual but also when it relates to or concerns the individual. The result of this approach may be that the definition becomes so broad that almost any information can qualify as personal.

However, as the UFCW case suggests, while the right to privacy is very important, the broad notion of privacy as "control over personal information" – the origin of the FIPs and the modern privacy laws – not only protects the privacy of individuals but also inhibits the circulation of any kind of personal information. The concept ignores the flow of data for society as a whole, or legitimate reasons for organizations collecting, using or disclosing personal information, such as may be protected under the Charter's freedom of expression right as, in the UFCW case, was applied to the union's videotaping of strike-breakers.

Of course, the modern privacy laws are not absolute in their protective application but are subject to both exceptions from their scope – as specified exclusions from the application of the laws – and exceptions to the consent requirement.

The court's conclusions

The courts in UFCW examined these exceptions, but found them inadequate to offset the broad scope and application of PIPA sufficiently to enable it to stand. Exceptions to the scope of the law– in particular the journalism exception - and the "investigation" exception to the consent requirement, which the union sought to rely on, were addressed. The Supreme Court did not focus its analysis on whether – or how – these exceptions could be interpreted, or adjusted, to save the law. It did however address the fact that the privacy laws contain a very limited definition of publicly available information, with the result that virtually all personal information is protected, regardless of context. Against this concern, the Court weighed in the balance the need for individuals to maintain substantial control over their personal information even when exposed in public – and cited the capacity of developing technologies to amass and store information indefinitely as evidence of this need.

However the Court, in the specific context of a union's imperative to express its view on matters of significant public interest and importance (a strike), concluded that PIPA's "deleterious effects" in that context outweigh the benefits of the collection, use and disclosure of personal information "for many legitimate, expressive purposes related to labour relations" (such as ensuring safety of union members, attempting to influence the public, and bringing debate on the labour conditions with an employer into the public realm.

In sum, the Court concluded that PIPA's restrictions constitute an infringement of the union's freedom of expression that are disproportionate to the legislative objective of providing individuals with control over their personal information that they expose when crossing a picket line.

The Supreme Court's decision in the UFCW case is in many respects fact-specific: PIPA infringes on a union's constitutional right of freedom of expression, particularly in the collective bargaining context. However its impact is far more wide-reaching. The Court finds that PIPA, and by implication other Canadian private sector privacy laws, are subject to and must be limited in their application so as to comply with that right. Furthermore, the currently-held understanding of the breadth of scope of such laws will need to be reassessed and that scope narrowed to permit a wider unrestricted use of information in the public domain, particularly where that information is used to express views on matters of significant public interest and importance. 

by Éloïse Gratton

1 Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 2013 SCC 62) ("UFCW case").

2 It is also similar to the recently passed Manitoba Personal Information Protection and Identity Theft Prevention Act, which has not yet been proclaimed

3 Citing: Eloise Gratton, Understanding Personal Information: Managing Privacy Risks (LexisNexis, 2013) pp 6-13.

4 Canada (Information Commissioner) v Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157 (CanLII); Dagg v Canada (Minister of Finance), [1997] 2 SCR 403; Wyndowe v Rousseau 2008 FCA 39 (CanLII). 5

5
 See for example, "A Privacy Handbook for Lawyers – PIPEDA and Your Practice" (Office of the Privacy Commissioner, 2011).

See the upcoming Privacy and Data Protection seminar hosted by McMillan and Lexpert to be held on December 09, 2013.  Go here for registration and details.


a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013