Balancing the right to freedom of expression with the right to privacy in an industrial dispute

United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (30 April 2012)

Summary

This decision of the Court of Appeal of Alberta considered the scope of the right to freedom of expression in the Canadian Charter of Rights and Freedoms. This was considered in the context of whether a union had the right to collect and distribute images of people crossing a picket line.

This appeal was brought by the Attorney General of Alberta who argued that the union's collection and use of the images constituted a breach of privacy.

Facts

A union, United Food and Commercial Workers, represented workers at the Palace Casino in Edmonton. In 2006, collective bargaining broke down and the workers went on strike. During the strike, the union videotaped the picket line. It posted signs in the area stating that images of those who crossed the picket line might be placed on a website (although this did not actually occur).

Several people who were recorded crossing the picket line filed complaints with the Information and Privacy Commissioner under the Personal Information Protection Act, SA 2003, c P-6.5.

The Commissioner directed an inquiry, and a privacy adjudicator made an order that under the Act the union did not have the right to collect and use the recordings, unless they were used for journalistic purposes (in which case the Act would not apply) or for investigations and legal proceedings (exemptions under the Act).

The union applied to the Alberta Court of Queen's Bench for judicial review, arguing that the adjudicator's interpretation of the Act violated its constitutional rights to freedom of expression under the Canadian Charter.

Section 2 of the Canadian Charter states that everyone has a right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

Justice Goss of the Queen's Bench found that the adjudicator's interpretation did violate the union's constitutional rights and struck down certain sections of the Act. She also quashed the offending portions of the adjudicator's order.

The Attorney-General appealed the decision, arguing that members of the public had a right to protect the use of their image and therefore the need for consent, as set out in the Act, was justifiable.

Decision

The appeal centred on two issues: whether the Act restricted the union's freedom of expression and, if so, whether that restriction was demonstrably justified in a free and democratic society.

The Court of Appeal allowed the appeal only to the extent that it decided the remedy granted by the Queen's Bench should be varied. Instead of declaring certain sections of the Act invalid, the Court of Appeal made a declaration that the application of the Act to the union's activities was unconstitutional. It noted that it is the role of the legislature to reconcile the Act with the Canadian Charter. The order quashing the offending portions of the adjudicator's decision was affirmed.

Was freedom of expression inhibited?

The Court of Appeal held that the Act did inhibit the union's freedom of expression. It held that the various proposed uses of the images (including placing the images in newsletters and leaflets, spreading news of the existence of the strike, attempting to dissuade people from entering the Casino, using the vice president of the casino's image in a satirical manner and the education of union members) are all expressive activities. It held that where freedom of expression is engaged it encompasses an ability to collect the information that is to be distributed.

Justification for restricting freedom of expression

The Court of Appeal held that the restriction on the union's right to express itself was not justified. It noted that the Act does address the “pressing and substantial problem” of protecting reasonable expectations of privacy, however, it found that the Act was unnecessarily broad.

The Court of Appeal noted that the protection of personal information is important, but no more important than collective bargaining and the right of the union to communicate its message to the public. The Court of Appeal held that the privacy interest being protected in this case was minimal as the people being videotaped were in a public place and they had been warned that images were being collected. Furthermore, the Court of Appeal found that whilst the general protection of privacy is important, it is not found in the Canadian Constitution and therefore cannot be equated with constitutional values like freedom of expression.

Relevance to the Victorian Charter

This case may provide some guidance to Victorian courts in interpreting the right to freedom of expression under section 15 of the Victorian Charter of Human Rights, which is similar to the provision in the Canadian Charter. This case indicates that the right to freedom of expression can be interpreted quite broadly and may ‘trump’ other human rights, such as the right to personal privacy, in certain circumstances.

The Victorian Charter, in section 7(2), also contains a similar provision to the Canadian Charter requiring that human rights only be subject to limitations by laws to the extent these limitations can be “demonstrably justified in a free and democratic society”.

However, it should be noted that the legislative scheme in Australia, and Victoria in particular, differs from that considered in this case. An individual's right to privacy is protected in a similar way to that discussed in this case, under the Information Privacy Act 2000 (Vic), the Privacy Act 1988 (Cth) and section 13 of the Victorian Charter.

However, the Canadian Charter is enshrined as part of the Canadian Constitution and therefore carries more weight than the Victorian Charter, which is simply an Act like any other Victorian legislation and may be replaced or amended by Parliament. The balancing of the right to privacy and right to freedom of expression under the Victorian Charter is also more challenging as there is not a distinction in the legislative priority of the rights.

Further, under the Victorian Charter, the union (as a private organisation) would not itself be entitled to human rights as section 6(1) of the Victorian Charter states that only natural persons, and not corporations, have human rights. However, an individual union official would have their human rights protected by the Victorian Charter, so could argue an infringement of their right to freedom of expression in a similar way to the union.

The decision is available online at: http://canlii.ca/en/ab/abca/doc/2012/2012abca130/2012abca130.html

Tamsin Webster is a lawyer at Maddocks.