Crossing the line: Supreme Court of Canada to consider balance between privacy rights and freedom of expression in picket line videotaping case

October 25, 2012

In an important constitutional case, the Supreme Court of Canada has granted leave to hear an appeal from a decision that found that the application of privacy law to the videotaping of individuals crossing picket lines infringed the Canadian Charter of Rights and Freedoms.

 As we noted in a previous post, the judgment in question considered the activities of a union that had videotaped picketing activity during a strike at an Edmonton casino.  Like other Canadian private sector privacy laws, Alberta’s Personal Information Protection Act (PIPA), generally requires the consent of individuals for the collection, use and disclosure of their personal information, including videotaped images of identifiable individuals.  The union, which did not obtain such consent, videotaped and photographed the picket lines in order to publicize the images of individuals crossing the lines. 

Several of the individuals in question complained to the Information and Privacy Commissioner for Alberta.  An adjudicator for the Commissioner found that in failing to obtain the consent of the individuals being videotaped, the union had violated PIPA.

The Alberta Court of Appeal found that the application of PIPA to the union’s activity in the context of a labour dispute violated the right of the union to freedom of expression guaranteed by s. 2(b) of the Charter.  The Court accordingly declared that the application of PIPA to the activities of the union was unconstitutional.

While the facts under appeal relate only to the application of Alberta’s private sector privacy law, the decision on the appeal may also affect the application of substantially similar laws in British Columbia and Québec, as well as the federal law, the Personal Information Protection and Electronic Documents Act.

The outcome of the appeal to the Supreme Court may have important implications well beyond the legality of surveillance activity in connection with picket lines, as it explores the intersection between privacy law and other conflicting rights, potentially calling into question the adequacy of the typically narrow exceptions to the consent requirement in privacy statutes.   In considering the balance between consent requirements and free expression, the appeal may also have important implications for the application of Canada’s Anti-Spam Law (not yet in force), which includes restrictive consent requirements with respect to the sending of commercial electronic messages.

See Information and Privacy Commissioner et al. v. United Food and Commercial Workers, Local 401 et al. (Alta.) (Civil) (By Leave) (34890)

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