The Supreme Court of Canada has agreed to hear a case that deals with balancing privacy rights against constitutional rights to freedom of expression.
In United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), 2012 ABCA 130, the Court of Appeal of Alberta suspended application of the Personal Information Protection Act (PIPA) to activities of a union, finding PIPA infringed the union’s Charter rights to free expression. The union video recorded people crossing a picket line at Palace Casino in Edmonton, and posted signs warning that images of people crossing the picket line might be placed on a website called CasinoScabs.ca.
The complainants included employees and officers of Palace Casino, and members of the public. However, no recordings of any of the complainants were actually posted to the website. The union argued that it was entitled to record persons crossing the picket line for “journalistic purposes”, which are activities outside of PIPA, or the recording was in anticipation of legal proceedings or investigations arising out of the strike. If the recording was not otherwise permitted, the union argued that PIPA is too sweeping in its reach in violation of the union’s Charter rights.
The Court of Appeal found that the union was not primarily engaged in a journalistic activity. The Court found that since PIPA contains no general exemption for forms of expression that are constitutionally protected, PIPA’s constitutionality should be analyzed directly, not indirectly through an artificial screen of journalistic purposes. The Court went on to consider the constitutionality of PIPA requiring the union to obtain consent to the collection, use, and disclosure of images of people crossing the picket lines. The Court found a prima facie breach of the Charter right to free expression, and that the infringement was not justified in the circumstances. The Court commented that at para. 85:
Individuals undoubtedly do have an interest in how their images are used. Members of the public cannot, however, have a reasonable expectation that they can live their lives in total anonymity. People do not have a right to keep secret everything they do in public, such as crossing picket lines. There is no recognized right to withhold consent to the dissemination of information about unpleasant conduct. Holding people accountable for what they do or do not do in public is a component of the right to free expression.
The Supreme Court granted leave to appeal, and so will consider what balance should be struck between freedom of expression and privacy interests.