A recent decision by the Court of Queen’s Bench of Alberta to strike down provisions in Alberta’s Personal Information Protection Act (PIPA) could have ramifications nationwide as the offending provisions are mirrored in the federal Personal Information Protection and Electronic Documents Act (PIPEDA). In United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner) the Court declared several narrow exemptions in the Alberta legislation to be unconstitutional.

In 2006, the United Food and Commercial Workers, Local 401 (the Union) set up picket lines around the West Edmonton Mall casino, where some of their members worked. The Union video-taped and photographed the picketing in order to publicize images of certain individuals who had crossed the picket lines. Several of these people complained to the Information and Privacy Commissioner (the Commissioner).

One of the Commissioner’s adjudicators found that the Union, having collected personal information, was therefore subject to PIPA, which applies to all organizations and generally prohibits the collection, use and disclosure of personal information without an individual’s consent. The adjudicator held that the Union had violated PIPA by not obtaining consent to use the images of the individuals passing the picket lines.

The Union appealed to the Court of Queen’s Bench. While conceding that it had collected personal information and used it intentionally, the Union argued that it was exercising its right to freedom of expression and that certain exemptions in PIPA were unconstitutional to the extent the provisions were too narrowly-defined and infringed on its Charter right to freedom of expression.

The Union focused on two exemptions to the application of PIPA, specifically where the information collected, used or disclosed is:

  1. “publicly available”; or
  2. “for journalistic purposes and for no other purpose”.

The Union argued that recordings of its picket lines should have been exempted from PIPA because any passing individuals could not have had a reasonable expectation of privacy given that they were recorded in public. The Union also argued that the fact that it had an interest in the outcome of the strike (and thus an interest in the collection, use and disclosure of the information beyond simple journalism) should not prevent it from being able to rely on the exemption for journalistic purposes.

The judge held that a narrow definition of “publicly available” information would infringe the Union’s Charter rights by precluding the Union not only from collecting images in a public setting, but by preventing the Union “from describing in words what happens in public” if the information contained personal information.

According to the Court, the complainants in this case had no reasonable expectation of privacy. “They were at not just a public place, but a public demonstration with important political and social implications.” As such, the judge found that there was no rational connection between the goal of the protection of individual privacy and the method of restricting the recording of images at a public demonstration. By way of contrast, she noted that privacy legislation in British Columbia contained exemptions for personal images recorded at voluntarily attended public gatherings (e.g. sporting events).

The judge also found the phrase “and for no other purpose” in the journalistic exemption too restrictive and therefore unconstitutional. Any non-media organization, such as the Union, that engaged in journalism would have some other additional purpose and would never fall within the exception. The judge noted that “the requirement that an organization’s only purpose be journalistic is an extreme, almost draconian, limitation on freedom of the press.”

Unable to read the impugned provisions in a manner consistent with Charter values, or to find any Charter justification for these breaches, the judge quashed the adjudicator’s decision to the extent that it relied on the impugned provisions. She further issued a suspended declaration of invalidity with respect to the “publicly available” exemption, with an immediate carve-out for information gathered at trade union picket lines, and declared the phrase “and for no other purpose” in the journalistic exemption to be invalid.

This decision is especially interesting as PIPEDA contains very similar exemptions for the collection, use and disclosure of personal information: (i) when the information is publicly available, or (ii) when the information is used for journalistic purposes and not for any other purpose.