What’s Missing from this Picture?

The Supreme Court does not live by the Senate alone. This morning, it delivered a decision on the interaction of the rights to privacy and freedom of expression, Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, finding Alberta’s privacy-protection legislation unconstitutional as an overbroad restriction of legitimate expressive activity. Yet important though its subject is, the decision raises as many or indeed more questions than it answers.

The case arose out of the respondent union’s filming people who were crossing, or simply found themselves near, its picket line as it was engaged in a (lawful) strike. Several of those thus filmed, including a manager, whose image the union used in materials it distributed to its striking members and some members of the public who had nothing to do with the labour dispute and whose images were apparently never used,  complained to the Alberta Information and Privacy Commissioner. An adjudicator appointed by the commissioner found that the union violated Alberta’s Privacy and Information Protection Act‘s broad prohibition on collecting and using “personal information” about individuals without their consent. The adjudicator also found that, although the union’s purpose was expressive and related to its legitimate activities (the union sought, for example, to inform the public and its members about the labour dispute it was involved in, to dissuade people from crossing its picket line, and to collect evidence of both its peaceful activity and of any altercations that might arise), its activities did not fall with PIPA‘s narrow exceptions.

The adjudicator was precluded from considering the constitutionality of PIPA‘s interference with freedom of expression. On judicial review, both the Court of Queen’s Bench and the Alberta Court of Appeal found that the application of PIPA to the union’s activities in this case was a breach of the freedom of expression protected by s. 2(b) of the Charter, and that it was not justified by s. 1. The Supreme Court unanimously agrees.

Since PIPA operated to prohibit the union’s expressive activities, the Court “conclude[d] without difficulty that it restricts freedom of expression” (par. 17). PIPA, to be sure has an worthy purpose, the protection of privacy being of great importance and privacy legislation being, indeed, “quasi-constitutional” (a term whose meaning, I have argued here, is not quite clear), and is obviously related to that purpose.  But its “broad restrictions are not justified because they are disproportionate to the benefits the legislation seeks to promote” (par. 20). In the labour context, freedom of expression is very important to mitigate “the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker” (par. 32), to sway public opinion, and thus to achieve the workers’ collective goals. Yet PIPA applies “without regard for the nature of the personal information, the purpose for which it is collected, used or disclosed, and the situational context for that information” (par. 25). In this case, the information at issue was not especially sensitive: people were filmed in a public place, and “[n]o intimate details of the lifestyle or personal choices of the individuals were revealed” (par. 26). However laudable its goals, PIPA is much too broad.

In the result, the Court strikes down the PIPA in its entirety, suspending the declaration of invalidity for a year to allow the legislature to achieve a better balance between privacy and freedom of expression. It does not say much about where that balance lies, merely noting that its “conclusion does not require that we condone all of the Union’s activities” and that “like privacy, freedom of expression is not an absolute value [so that] both the nature of the privacy interests implicated and the nature of the expression must be considered” (par. 38).

This cautious approach might be sensible in dealing with a broad and evolving subject like privacy, but the decision does leave one with many questions. One question is what to make of the Court’s failure to consider or so much as mention what is usually the crucial stage of s. 1 analysis: the “minimal impairment” question of whether a statute’s objectives can be achieved without compromising Charter rights as much as it does. Is this omission case-specific (due either to the ease of resolving the case on another stage of the s. 1 analysis or to the Court’s reluctance to discuss alternative regulatory schemes, so as not to narrow the legislature’s choices in advance), or a signal of a broader change in the Court’s approach to s. 1? Probably the former, but we have to wait and see.

Another concerns the importance of context. The Court makes much of the importance of freedom of expression generally and of picketing tactics specifically to labour unions, but there are other situations in which the conflict between freedom of expression and privacy might arise. For example, I discussed the issue of potential applicability of privacy laws to political parties here. PIPA’s paragraph 4(3)(m) specifically exempts political parties, but of course the Court’s decision is guidance for dealing with other privacy legislation as well. As I suggested then, “[d]epending on the outcome of th[is] case, political parties might be able to challenge any extension of the privacy legislation to cover their activities.” The outcome certainly suggests that this is so, but we cannot quite tell just what role the special context of labour disputes played in the Court’s decision, and whether it would approach the activities of political parties (which, I have suggested, can seem quite creepy) differently.

These, I think, are important issues. The Supreme Court has resolved one specific issue, but the big picture of the relationship between freedom of expression and privacy is far from complete.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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