Appeal Watch: Freedom of Expression v. Privacy Rights

On October 25^th, the Supreme Court of Canada (SCC) granted leave to appeal in United Food and Commercial Workers, Local 401 v Alberta (Attorney General) 2012 ABCA 130.

The case involves striking union workers who had videotaped people crossing a picket line and then threatened to post the images online. The issue before the SCC is whether posting such images is an invasion of privacy contrary to Alberta’s Personal Information Protection Act (PIPA).

In 2006, workers at the Palace Casino in Edmonton went on strike after collective bargaining agreements broke down.  They videotaped the picket line, which the evidence disclosed was standard practice in Alberta during such strikes. There was a sign posted warning that  images of individuals caught crossing the picket line could be posted to a website, “www.CasinoScabs.ca”. The Union did not actually post any images online  although they did use an image of the vice president of the casino in a satirical “police mug shot” poster.

The Information and Privacy Commissioner directed an inquiry and the Adjudicator  concluded that some of the footage was allowed to be collected under PIPA without consent because it was being used in relation to an  “investigative or legal purpose” under s. 14(d) of the Act. The Union claimed that they were recording the picket line to possibly use in proceedings before the Labour Relations Board or court proceedings related to picketing. Under this exception of the Act, it was not necessary for the union to prove that an investigation or legal proceeding was underway, only that there was a reasonable expectation of one occurring. However, some images, like the mug shot of the vice president, were not used for these purposes. The adjudicator ruled that the Union did not have the right to collect and use these disputed images because they were contrary to PIPA and ordered the union to destroy any such images in its possession.

The union appealed to the Alberta Court of Queen’s Bench, alleging that the adjudicator’s ruling infringed their s. 2(b) Charter right to freedom of expression. The trial judge agreed, holding that the disputed images had expressive content and that the infringement of the Union’s freedom of expression could not be justified under s.1 of the Charter. The trial judge examined s. 4(3)(c) of PIPA, where an exemption is allowed for “journalistic” information:

“4(3) This Act does not apply to the following:

 . . .

 (c)        the collection, use or disclosure of personal information . . . if the collection, use or disclosure, as the case may be, is for journalistic purposes and for no other purpose;”

The trial judge struck down the words “and for no other purpose” in s. 4(3)(c) of the Act to widen the “journalistic” exception to protect the information gathered by the Union. The Attorney General appealed the ruling to the Court of Appeal.

The Court of Appeal determined that the privacy interest at stake was not significant enough to justify stifling  the Union’s expression:

“…the privacy interest being protected here is minimal. The persons who were videotaped were in a public place, crossing an obvious picket line, in the face of warning signs that images were being collected. The privacy expectations were very low. Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted from the Adjudicator’s order.”

The Court of Appeal partly allowed the appeal, finding that striking down “and for no other purpose” in s. 4(3)(c) of the Act was not the proper remedy.   Instead, the Court of Appeal granted a declaration that the application of the Act in regard to the activities of the union was unconstitutional, leaving it up to the Legislature to decide how to make the Act compliant with the Charter.

This case presents an interesting problem – especially in the face of current technology. Almost all cellphones in use today have the capability to take pictures and capture video. This makes it effortless for an individual to film footage of say, a public fight in a downtown restaurant and broadcast the images internationally on YouTube, all without the consent of the individuals in the restaurant. Will freedom of expression always take precedence over privacy interests in public areas? We’ll see what the SCC thinks.