Alberta Court Strikes Down PIPA Exemption Provisions

In the recent case of UFCW, Local 401 v Alberta (Information and Privacy Commissioner), the Court of Queen’s Bench of Alberta (Court) held that provisions of Alberta’s Personal Information Protection Act (PIPA), purporting to prevent photographic and video recordings of a lawful picket line, infringed the freedom of expression guarantee in section 2(b) of the Canadian Charter of Rights and Freedoms (Charter), and that the infringement could not be justified under section 1 of the Charter. The UFCW had recorded non-union employees crossing a picket line (Complainants) and published the recordings in posters and on the Internet without notice to or the consent of the Complainants. The Complainants filed a complaint with the Alberta Information and Privacy Commissioner (AIPC). The UFCW responded that the recordings were exempt from PIPA, and fell within PIPA’s ‘publically available’ and ‘journalistic’ exemptions (PIPA Exemption Provisions). Nevertheless, the AIPC granted the order, finding that the recordings were not exempt and that the UFCW breached section 13 of PIPA for failing to notify the Complainants prior to the publication of the recordings. The UFCW sought judicial review of the AIPC decision, challenging the application of PIPA and the constitutionality of the PIPA Exemption Provisions under section 2(b) and section 1 of the Charter. In its judicial review decision, although the Court upheld the AIPC’s finding that PIPA applied to the recordings, it also found that the PIPA Exemption Provisions infringed section 2(b) of the Charter on the basis that recording picket lines has long been recognized as a protectable form of expression, the UFCW’s publication of the recordings did not conflict with Charter values, and that the PIPA exemption provisions had the effect of limiting picketing as a form of expression. The case is a useful reminder that even information protection legislation must conform to the basic norms laid down by the Charter. For a link to the decision (2011 ABQB 415), visit: http://canlii.ca/s/6l90i. Summary by: Darren Hall