The Supreme Court of Canada (“SCC”) unanimously struck an Alberta law that prevents unions from videotaping and photographing workers crossing a picket line. The decision resonates across Canada, particularly because other provinces, such as British Columbia, have privacy legislation similar to the struck Alberta law.

The SCC declared the Personal Information Protection Act, S.A. 2003, c. p-6.5 (“PIPA”) and its regulations invalid, because they violate freedom of expression, as set out in the Canadian Charter of Rights and Freedoms.

In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, the SCC addressed whether PIPA provides a constitutionally acceptable balance between the privacy interests of individuals and a union’s freedom of expression.

The dispute arose when the United Food and Commercial Workers, Local 401 (the “Union”) recorded video and photographed individuals crossing its picket line. The Union posted signs near its picket line in front of the Palace Casino at the West Edmonton Mall in 2006, informing the public that images were being taken and could be posted online.

A number of people videotaped and photographed made complaints to the Information and Privacy Commissioner of Alberta. An adjudicator for the Commissioner decided the Union had violated PIPA. The Union applied for judicial review on the basis that the legislation infringed the Union’s right to freedom of expression.

The reviewing judge and the Alberta Court of Appeal both decided PIPA is overly broad and violates the right to freedom of expression.

In agreeing that PIPA, which governs most private sector organizations in Alberta, is overly broad, the SCC wrote, “PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes.”

The SCC added:  

PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations. These purposes include ensuring the safety of union members, attempting to persuade the public not to do business with an employer and bringing debate on the labour conditions with an employer into the public realm. These objectives are at the core of protected expressive activity…

In assessing whether the deleterious effects of PIPA were proportionate to its objective of protecting individual privacy interests, the SCC noted people crossing the picket line did so in public view, and the personal information collected and used “did not include intimate biographical details”.

Given PIPA’s comprehensive and integrated structure, the SCC struck PIPA in its entirety, allowing legislators to redraft it rather than amend specific provisions. The SCC suspended the declaration of PIPA’s invalidity for 12 months to give Alberta legislators time to decide how best to make the legislation constitutional. As such, PIPA will continue in force until mid-November 2014.