The Supreme Court is hearing an appeal of an Alberta Court of Appeal decision involving the right of unions to record and publish the names and images of workers who cross a lawful picket line. The Court of Appeal ruled that privacy legislation was invalid insofar as it prevented unions from doing so because it violated unions’ freedom of expression.
Here is a repost of my review of the Alberta Court of Appeal decision when that case was released.
The Alberta Court of Appeal issued an interesting Charter decision last week involving the rights of unions to videotape and then publish, in written material and on the Internet, images of people who cross a legal picket line. The case is called UFCW, Local 401 v. Alberta (A-G). The Court ruled unanimously that insofar as Alberta privacy legislation prohibited the right of a union to do this, it violated the union’s Freedom of Expression, and the violation was not saved by Section 1. There are some interesting comments from the Court about the importance of a union’s right to use tactics like videotaping ‘scabs’.
The UFCW represents workers at a Casino in Edmonton who were engaged in a lawful strike. Both the employer and the union began to videotape the picket line, something the Court said is “standard practice in Alberta”. The union posted signs near the picket line warning people that the line was being videotaped and that images might be placed on a website called “CasinoScabs.ca”. In fact, images were never posted, but some people who were recorded crossing the picket line (including employees and members of the public) filed complaints under the Personal Information Protection Act.
That legislation essentially prohibits organizations from collecting, using, or disclosing information about a person without that person’s consent. There are some exceptions, including information used for ‘journalistic’ purposes, or information that is used for investigation or in a legal proceeding. An adjudicator under the legislation ruled that while some images of the picket line could be collected and saved in the event of legal proceedings that could arise relating picket line conduct, it could not post or distribute images of people crossing the picket line without their consent. The fact that the union wanted to use the images to advance its collective bargaining objectives of discouraging people from crossing the picket line did not provide an exception to the need to obtain individual consent.
Issue: Can legislation prohibit unions from using images of people on a picket line to advance their collective bargaining objectives?
The Court of Appeal sided with the union, finding that legislation violated Section 2(b) freedom of expression insofar as it prevents a union from using images of people crossing picket lines to advance collective bargaining objectives.
The Court begins by noting that picketing is ‘expression’ [See Pepsi-Cola Canada]. Moreover, expression on a picket line “is directly related to the Charter right of workers to associate together to achieve their common goals” recognized by the SCC in Fraser. The Court then notes the obvious point that the very purpose of a picket line is to dissuade people form crossing and from doing business with the struck employer. Recording people who elect to ignore this signal from the workers is part of the tools available to unions and workers for strengthening the incentive for people to respect the picket line:
One purpose of a picket line has always been to inform the workers and members of the public of the strike. Those who are sympathetic with the strike will often refuse to cross the picket line. It is also clear that the presence of the picket line is intended to discourage and even intimidate the non-sympathetic into suspending their relationship with the employer. Recording and distributing images of those crossing the picket line serves both these functions. It spreads news of the picket line to a wider audience. It also tends to increase the pressure on those who might be tempted to cross the picket line. Rather than just being subjected to the disapproval of those who actually observe a member of the public crossing the picket line, the line-crosser engages the risk that a wider audience of friends, neighbours, business associates, and other members of the public may see the violation of the picket line. Recording the picket line therefore also has an expressive purpose.
The Court acknowledged that the threat of having your image disseminated as you cross a picket line can be intimidating, but dismisses that argument by observing that “strikes are not tea parties”, and by noting that “a reasonable amount of psychological pressure” is allowed, as long as there is no promotion of violence. I recall a similar observation made by the B.C. Court of Appeal in a case I worked on years ago called Fletcher Challenge, where the Court found nothing improper in a union sending a clear message to a supplier of the struck employer that crossing a picket line will attract the wrath of the union and the workers.
Because the privacy legislation had been interpreted by the adjudicator to restrict the collection and use of images by the union of people crossing the picket line, it infringed the union’s freedom of expression. The Court ruled: “Dissuading people from crossing the picket line, enhancing morale of the strikers, deterring violence and threats, and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression. Persuading people to think or act in a certain way is a direct purpose of free expression.”
The Court then ruled that the violation of Section 2(b) was not saved by Section 1. The overly broad restriction on the use of images of people crossing a public picket line was not proportionate to the objective of protecting individual privacy:
It is also not apparent that the salutary effects of the Act outweigh its deleterious effects. While the protection of personal information is important, it is no more important than collective bargaining and the rights of workers to organize. It is also no more important than the right of the union to communicate its message to the public. On the other hand, the privacy interest being protected here is minimal. The persons who were videotaped were in a public place, crossing an obvious picket line, in the face of warning signs that images were being collected. The privacy expectations were very low. Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted from the Adjudicator’s order….
Individuals undoubtedly do have an interest in how their images are used. Members of the public cannot, however, have a reasonable expectation that they can live their lives in total anonymity. 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 characterization by the Court of Appeal of crossing a picket line as “unpleasant conduct” will no doubt please the labour movement. The Court did not strike the legislation, but instead overturned the adjudicator’s interpretation of it as restricting union rights to record and publish images of people on a picket line without the people’s consent.
While this case deals with specific Alberta legislation, it represents an important win for the Canadian labour movement insofar as it respects an expansive right of unions and their members to engage in expressive activities to exert pressure on people to respect lawful picket lines.
Do you think the Court’s approach was reasonable? Do you think unions (and employers) should be prohibited from recording people’s behaviour on a picket line and from publishing those images? Would you cross a picket line? Would the fact that you are being videotaped influence that decision?
If an organization cannot record and publish these images, then what stops an individual union member, or me for that matter, from recording and publishing the images?