Tuesday, 22 May 2012

Striking a balance between Data Privacy Legislation and Charter Rights relating to Freedom of Expression


Within the Canadian constitutional landscape data privacy legislation is arguably within the ambit of both federal and provincial jurisdictions. Under section s 91(2) trade and commerce clause of the Constitution Act of 1867 Parliament of Canada enacted the Personal Information and Protection Act (PIPEDA) which applies to private sector organizations with commercial activities across Canada. At the same time provincial legislatures have also implemented privacy legislations pursuant to s 92(13) property and civil rights provisions of the Constitution Act. While the constitutionality of PIPEDA may be challenged[1] at a future date[2]  there is acknowledgment of shared jurisdiction between the federal government and the provinces. Provinces are exempt from compliance with Part 1 of PIPEDA if provincial privacy legislations are “substantially similar” to obligations relating to the collection, use and disclosure of personal or personally identifiable information.

There is yet another dimension of the tension between provincial and federal jurisdictions that surfaced with the recent Alberta Court of Appeal decision in United Food and Commercial Workers Local 401 v Alberta (Attorney General), 2012 ABCA 130.  In this appeal the court was asked to determine whether or not a union’s actions of videotaping individuals who may have crossed picket lines and then posting it to a website are protected by Charter of Rights as freedom of expression or does it infringe upon privacy rights pursuant to the provisions of the Alberta Personal Information Protection Act (PIPA). The court held that while it is of outmost importance to protect individual privacy rights particularly in light of technology advances the definition of personal or personally identifiable information in the Alberta PIPA Act was deemed to too broad and as such encroached upon the equally important right of freedom of expression. The court was particularly concerned about the absence of reasonable limits on what is deemed to constitute personal or personally identifiable information. The court reasoned “that People do not have a right to keep secret everything they do in public, such as crossing picket lines. There is no recognized right to withhold consent to the dissemination of information about unpleasant conduct. Holding people accountable for what they do or do not do in public is a component of the right to free expression.” The court concluded that “While the protection of personal information is important, it is no more important than collective bargaining and the rights of workers to organize.”

This decision may prompt similar challenges with respect to other provincial privacy legislations as well as the Federal PIPEDA legislation. Furthermore this decision brings into focus the role that Information Management plays in the formulation, implementation and measurement of the efficacy relating to the collection, use, disclosure and disposition of personal and personally identifiable information. There are increasing complexities associated with harmonizing competing values in an effort to balance competing interests domestically and also as part of international or cross border obligations relating to the transfer of personal information.  For example the European Union’s Directive on Data Protection prohibits member states from transferring personal data unless the requesting party provides adequate levels of protection in accordance with the provisions of the Directive.  Information Management professionals need to be increasingly more familiar with the complexities associated with multi -jurisdictional privacy regimes, legislation and regulations in order to implement effective business processes to support the collection, use, disclosure and disposition of personal data. Further compounding the challenges faced by IM professionals is the dynamic nature of a constantly evolving privacy landscape.

[1] http://www.teresascassa.ca/index.php?option=com_k2&view=item&id=96:fresh-questions-about-the-constitutionality-of-pipeda?&Itemid=80.  The recent Supreme Court decision in Re Securities Act held that a purported national securities regime was unconstitutional as it encroached upon provincial jurisdiction under section 92(13). The federal government was unable to establish that absence of a national securities regime would undermine consistent administration of securities regulations which the provinces acting alone could not achieve thereby falling within the trade and commerce clause of the Constitution Act. A similar legal argument may be advanced with respect to the constitutionality of PIPEDA.
[2] The Province of Quebec initially challenged but then later abandoned its action. However in light of the Supreme Court of Canada decision in Re Securities Act a possible avenue may opened up to future constitutional challenges to PIPEDA.

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