POPI and freedom of expression
By Jerome Veldsman
Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, a decision by the Supreme Court of Canada (the apex Court) in 2013, dealt with a challenge to the Personal Information Protection Act (PIPA) on the basis of the constitutional right to freedom of expression.
There are substantial similarities between:
– PIPA and (the South African) POPI; and
– the Canadian and South African constitutional right to freedom of expression.
A “picket line” is a boundary established by workers on strike, especially at the entrance to a place of work, which others are asked not to cross. A “scab” (a derogatory term) is a worker who works despite an on-going strike, or a replacement for a striking worker.
The Union established a picket line, posted signs stating that images of persons crossing the picket line might be placed on a website (with “scabs” in its domain name), and indeed photographed and video-taped persons who crossed the picket line. Several persons complained to the Commissioner, and litigation ensued.
It was common cause that (in the jargon) the Union was “processing” “personal information” of the relevant “data subjects” (individuals) contrary to the provisions of PIPA, and that none of the exceptions under PIPA permitted such processing. So the Union challenged the constitutionality of PIPA on the basis that PIPA unjustifiably limited the Union’s right to freedom of expression.
The Court accepted that:
– PIPA served a pressing and substantial objective: providing an individual with some measure of control over his or her personal information; and
– PIPA limited freedom of expression.
The question to answer was whether PIPA impaired the right to freedom of expression no more than was necessary, and whether its effects were proportionate to the objective.
The Court answered the question in the negative:
“What is of the utmost significance in our view is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.”
“Free expression in the labour context can also play a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker … It is through their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attempt to persuade the employer.”
“PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our view, this infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picket line.”
The Court struck PIPA down in its entirety: “Given the comprehensive and integrated structure of the statute, we do not think it is appropriate to pick and choose among the various amendments that would make PIPA constitutionally compliant.”
However, PIPA was only one part of (overlapping) Canadian protection of personal information legislation, so PIPA being struck down did not have a great impact. It would be different if POPI was struck down in its entirety (a very unlikely event). Perhaps part of the delay in POPI becoming operative is the time it is taking to craft exemptions, regulations, and the like, for POPI to pass constitutional muster.