On November 15, 2013, the Supreme Court held Alberta’s Personal Information Protection Act (“PIPA”) to be unconstitutional, holding that an individual’s right to freedom of expression in the labor strike context outweighs the individual’s right to control his or her information in public. The ruling is suspended for 12 months to give Alberta’s legislature time to consider how to best amend PIPA.
This case, Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, arose after the union recorded and photographed employees of a casino crossing the picket line during lawful picketing activity. The union posted signs near the picket line saying that those who crossed the line would be photographed. Some of the photographs were eventually used on union newsletters and posters. The photographed employees filed complaints with Alberta’s privacy commissioner. An adjudicator appointed by the commissioner determined that PIPA prohibited the union from collecting, using, and disclosing such photographs and recordings without the consent of the employees. The case was reviewed by the appellate courts before eventually making its way to the Supreme Court.
The Supreme Court held in a 9-0 ruling that PIPA violates s. 2(b) of Canada’s Charter of Rights and Freedoms, which guarantees the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” After determining that dissuading workers from crossing the picket line is protected activity, the court found “without difficulty” that PIPA unconstitutionally restricts such freedoms of expression:
“It goes without saying that by appearing in public, an individual does not automatically forfeit his or her interest in retaining control over the personal information which is thereby exposed. This is especially true given the developments in technology that make it possible for personal information to be recorded with ease, distributed to an almost infinite audience, and stored indefinitely. Nevertheless, PIPA’s restrictions operate in the context of a case like this one to impede the formulation and expression of views on matters of significant public interest and importance.”
The tension between personal privacy and freedom of expression in the labor context is not unique to Canada. In the United States, for example, the National Labor Relations Board has struck down a number of social media policies for making sweeping prohibitions on what employees can and cannot post on their social media accounts. Our Employment Law Watch Blog has previously written about the NLRB’s social media cases. Back in July, the NLRB also held a company’s notice directing employees not to discuss workplace investigations to be in violation of the National Labor Relations Act. The recent Canada Supreme Court case is just the latest example of how this tension can play out in the courtroom.
While it is too early to tell what sort of specific changes to PIPA will result, the changes will likely focus on union activity, perhaps by expressly excluding union activity from the scope of the law. In the meantime, PIPA, as it’s currently drafted, will continue to remain in full force for the next year.