There is no doubt that we are in the midst of a massive shift in how we consume information and how we communicate with each other.  And there is also no doubt that those under 20 who grew up not knowing any different will have a very different kind of comfort around the online universe. 

Defining Online Privacy

Privacy is in the eyes of the beholder – for the very young, there is a tendency to continue to engage in frequent, open online interactions while asserting privacy rights around those online comments.  For many people over a certain age (50? 60? 30?), this is totally ridiculous.  You post it and it’s public.  Yet a typical Boomer would be appalled if someone listened into his or her conversation at a restaurant or at a public fountain. 

When so much of our personal life’s interactions are online, why not start to carve out the same sort of privacy we demand offline? The permanency of the written record only makes it more essential to think critically about what to do with all that information, not to just throw our hands up and give up.

The “public” status update may be online, but does that entitle the universe to act on that information to harm me, particularly when I’ve signaled my intention to maintain privacy over certain information through my privacy settings?  Whether or not it’s easy or possible to access and act on information, should we not set some re-defined, socially acceptable (and legal) parameters around online information?

Online Privacy in the Workplace

This is the core of the privacy dilemma that employers face.  In most US States, there is simply no expectation of privacy in the workplace, so employers have more flexibility around how to act upon their employee’s online information. 

In Canada and Europe, however, employees have varying degrees of a right to privacy on their workplace computer and in their online life generally.  Employers do not have any inherent right to read an employee’s Facebook page and discipline them for unpleasant or unpopular comments, subject to various legal tests such as the degree of economic harm on the employer’s business. 

It is legal in Canada, therefore, to be a total jackass online, and it is difficult to terminate an employee because of their online life, unless your employee is otherwise breaking the law or an enforceable workplace policy, bad-mouthing the employer’s business or exercising poor behavior that specifically intersects with the job’s reputational management concerns (e.g. a firefighter being sexist or a daycare worker writing hateful comments about children). 

Freedom of expression is, after all, a constitutional right in Canada.

Online Privacy in the Modern Economy

I anticipate that the generation growing up with the online world as simply an extension of their physical world – and not a public soapbox with different rules than in a restaurant or by the public fountain – will continue to carve out privacy rights in a way that makes sense to them and the online aspects of their daily, hourly lives.

Many proclaim that privacy is dead and we may as well either get over it or go off the grid.  The latter is not an option if you want to participate in the economy.  But giving up all privacy must surely bristle against human nature. 

The Desire for Privacy Won’t Die

My unscientific sense is that most of us inherently crave some amount of privacy.  Whether it’s to shield our imperfections from friends and family, to explore business or artistic ideas quietly, or to develop a potential romance without everyone staring and critiquing, the desire for privacy will not die anytime soon. 

We just have to figure out how to nurture and assert privacy parameters in the modern economy and online world.  And employers will have to continue to pay attention to this massive shift happening beyond the workplace to figure out how to handle expectations of privacy in the modern workforce.

I’d love to hear from you if your workplace has figured out the balance, or if you want to brainstorm about privacy policies that might help ease the way to the modern, online, e-information packed economy.

When addressing the dispute at a union’s picketline, which interest trumps:  your individual right to privacy or a union’s right to freedom of expression?

This morning, the Supreme Court of Canada (“SCC”) released a seminal case that aggressively concludes that the union’s constitutional right will prevail over an individual’s privacy rights arising out of the Alberta Personal Information Protection Act (“PIPA”):  Information and Privacy Commissioner of Alberta, et al v United Food and Commercial Workers, Local 401.

The SCC struck down PIPA in its entirety, giving the Alberta legislature a year to amend the statute to comply with this ground-breaking decision.

The Facts on the Picketline:

• During the UFCW’s 305-day lawful strike in front of an Alberta casino, both the employer and union recorded and took photos of individuals crossing the picketline;
• The union posted signs in the area of the pickline that images of persons crossing the picketline might be placed on a website called www.casinoscabs.ca;
• No recordings of the complainants were placed on the website referred to in the signs posted around the picketline.

The Privacy Complaint

Several individuals who crossed the picketline complained to the Alberta Information and Privacy Commissioner that their privacy had been violated.  One of the individuals who filed a complaint was the casino’s Vice-President, who complained that his image had been used in union materials, leaflets and a poster displayed at the picketline.

The individuals argued that the union contravened PIPA by collecting, using and disclosing their personal information (i.e. the recordings and photographs) without consent.

Section 2(b) of the Charter

The union responded to the complaints by asserting its constitutional right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter“).  The union argued that the purpose of collecting the information had core labour relations purposes, including informing union members and the public about the strike; dissuading people from crossing the picketline, and creating training material for union members.

Adjudication

Under Alberta law, the Privacy Commissioner does not have the authority to decide constitutional questions of law, and so the Adjudicator was prevented from deciding on whether the union’s Charter Right to freedom of expression trumped the individual’s privacy rights.

The Adjudicator did, however, very nicely lay the foundation for all three upper courts to find in favour of the union.  The Adjudicator concluded that the purposes for making the recordings and photos promoted the underlying purpose of the strike, namely to achieve labour relations’ resolutions in favour of the union.

The Adjudicator further concluded that the collection, use and disclosure of the information was for an “expressive purpose”, which feeds the upper courts helpful factual findings and conclusions, and draws upon the line of cases that support the union’s Charter rights.

The Appeals

The Adjudicator’s decision was judicially reviewed, argued at the Court of Appeal, and ultimately heard by the SCC.  All three upper courts, now having access to the Charter arguments, agreed that the union’s Charter rights prevailed over PIPA.

Here’s a summary of the SCC’s conclusions:

• PIPA’s exemptions (such as a journalistic purpose or a possible investigation or legal proceeding) that could have permitted the collection, use and disclosure of information without consent did not apply to the union’s activities in this case.  The SCC found that since no exemption applied to the union’s activities, PIPA’s application was too broad, restricted the union’s right to freedom of expression and thus violated the union’s Charter rights.
• Once the Charter violation was found, the SCC then analyzed whether the restriction on the union’s right to freedom of expression is justified in a free and democratic society (i.e. the section 1 Charter analysis).  The SCC concluded that while PIPA’s provisions are rationally connected to its objectives to protect privacy interests, “its broad limitations on freedom of expression are not demonstrably justified because its limitations on expression are disproportionate to the benefits the legislation seeks to promote.” (paragraph 18 of the decision)
• PIPA’s limitations on the collection, use and disclosure of personal information without consent did not give sufficient regard to the nature of personal information (these were images of people in public), purpose (to further the Union’s Charter right to freedom of association under section 2(d)), or context (lawful picketline).
• Drawing on a long line of cases, the SCC reiterated that freedom of expression in the context of a lawful labour dispute is an “essential” component of labour relations.
• The SCC concluded:

[37] 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 picketline.

Status of PIPA

Upon the request of the Alberta Information and Privacy Commissioner and the Attorney General, the SCC did not cherry pick which provisions of PIPA violate the Charter.  Rather, the SCC struck down PIPA in its entirety, declaring PIPA to be invalid as of 12 months from today.  This gives the Alberta legislature time to revise and correct the legislation.

What about outside of Alberta?

While this case is huge news for privacy law in Alberta, it is also a seminal case for the rest of Canada.  This case clearly and unambiguously concludes that any Canadian union’s Charter right to freedom of expression on a pickline will trump individual privacy rights.  Although privacy rights are deemed quasi-constitutional throughout the case law, there is no “quasi” to the constitutional rights of the Charter.

Employers and individuals crossing picketlines are not protected by privacy laws, and must govern themselves accordingly.  Whether you call individuals crossing a picketline a “scab” or “replacement worker”, the union’s Charter rights will permit images of people at the picketline to be taken and posted, provided the purpose is connected to labour relations.