Privacy & Freedom of Expression: Alberta Court Says Privacy Law is Unconstitutional

A striking union recorded video of a picket-line outside a casino in Edmonton. Photo and video was then posted online at a union protest site. Three people complained that their personal information had been collected in breach of the Personal Information Protection Act (PIPA). A decision by the Privacy Commissioner said that the union’s practice breached PIPA. The union appealed and an Alberta court has handed down a surprising decision that some of the privacy restrictions in PIPA are unconstitutional, because they tread on the right to freedom of expression.

In United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 (CanLII) , the court surveyed the law in this area and focussed on two issues:

  • First, what constitutes “publicly available” information? PIPA provides an exception for such information, which is defined in the Regulations and includes such things as information in phone books and directories and records held in public registries. The definition does not cover information that could be collected at public, social or political events. The court decided that this restriction violated the union’s Charter-protected freedom to express itself through video and photos taken at a public political event  
  • The other exception examined by the court is the “journalistic purposes” exception in PIPA.  The union argued that PIPA limits the “journalistic purposes” exception to traditional media such as newspapers, magazines and television and excludes “non-traditional media” such as the union, who collect information for purposes other than journalism. Again, the court decided that this restriction violated the union’s freedom to express itself for purposes that may include journalism and other purposes.

Thus, the court quashed the decision of the Privacy Commissioner, and struck down portions of PIPA as being in violation of the Charter of Rights and Freedoms. This leaves some holes in PIPA that will have to be plugged by the government. Either they have to appeal the decision (which is likely) or they have to amend the legislation. This one will be interesting to watch since it touches on all kinds of fascinating topics such as a right to privacy in the Facebook era, what is in public sphere, “citizen journalism” and free expression through posting photos and videos online.

Calgary – 07:00 MDT

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