The importance of  the Internet has given rise to a considerable amount of litigation on the topics of protection of privacy and freedom of expression. In a recent judgment, the Supreme Court of Canada was asked to consider a novel issue: the use of personal information as a means to dissuade individuals from crossing a picket line.

The Supreme Court’s Decision

The events that led to the Court’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, took place in 2006, when the trade union at the Palace Casino at the West Edmonton Mall led a strike lasting almost a year. To discourage individuals from crossing the picket line, the union filmed and photographed those who did so and carried posters warning that the images might be published on the website

Several people who had been recorded filed complaints with the Alberta Information and Privacy Commissioner under the Personal Information Protection Act (PIPA), alleging that the union was acting illegally in collecting, using, and disclosing personal information without their consent.

The case slowly made its way to the Supreme Court of Canada, where the country’s highest tribunal considered the interaction between the union’s freedom of expression, protected by the Canadian Charter of Rights and Freedoms (“Charter“), and PIPA’s prohibition on collecting, using, or disclosing personal information without the consent of affected individuals.

In its judgment, the Court indicated that the collection, use, and disclosure of personal information relating to individuals crossing a picket line, while in public view and in the context of a lawful strike by a union, constituted a form of expression benefitting from Charter protection. Noting that the unions could not benefit from any of the exemptions provided for in PIPA, the Court concluded that the law restricts their freedom of expression.

The Court went on to recognize that PIPA is rationally connected to a pressing and substantial objective, the protection of privacy, but decided that the restrictions on freedom of expression were disproportionate to PIPA’s intended benefits. The Court emphasized the fact that the restrictions provided for in PIPA apply without regard to context or to the importance of the rights that they limit.

The Court pointed out that the personal information that was collected was done during an open, political demonstration that could be watched by the public, and that the affected persons could have little expectation of control over the information collected. Additionally, the personal information shared with the public was limited to images of people crossing the picket line and did not contain any intimate details about these individuals. The Court then discussed at length the particular importance of freedom of expression in the context of labour disputes, where such a freedom allows workers to redress the power imbalance with their employers and to feed the public debate on their working conditions.

The Court concluded that PIPA results in an unjustified infringement of the freedom of expression of unions and is thus invalid. Handed down on 15 November 2013, the declaration of invalidity was accompanied by a year-long suspension meant to allow the Alberta legislature to determine how PIPA can conform to the Charter.

It will, moreover, be interesting to keep an eye on the fate of other provinces’ laws on protection of personal information because many of them—including Quebec’s—contain provisions like those that brought PIPA before the Supreme Court.

The Impact on Employers

In its judgment, the Supreme Court made it clear that freedom of expression in a labour dispute might encroach upon the protection of privacy. In so doing, the Court seems to have left the door wide open to the collection and use of personal information in the context of a labour dispute, something that unions and workers will not forget. Employers caught up in a labour dispute can thus expect that a new tool of dissuasion will make its appearance not far from the picket lines set up in public view.

We should note, however, in passing that the plaintiffs’ complaint in this case was framed under a law aimed at the protection of personal information. Thus, the Court did not consider the interaction between a union’s freedom of expression and other rights that individuals whose personal information is collected and used might benefit from, such as those provided for in legislation on defamation or harassment in the workplace. The Supreme Court’s decision is limited rather to emphasizing that its reasons cannot be interpreted in such a way as to endorse illegal or criminal behaviour. It remains therefore to be seen whether a court seized of the same facts but in reference to a law of a different nature would arrive at the same result.

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