In October and November 2006, members of the United Food and Commercial Workers Local 401 were on strike and picketing at Palace Casino, located at one of Canada’s largest malls — West Edmonton Mall. Striking union members pointed a video camera at the entrance of the casino, recording the image of everyone who crossed the picket line to enter the facility.
They also took still photographs of some individuals who were crossing the picket line. Signs placed in the area suggested that the images of persons crossing the picket line would be placed on a “CasinoScabs” website and that by crossing the picket line individuals were providing their consent for this purpose. The union also placed some of the pictures on posters and in union newsletters.
As you can expect, a number of individuals who had been photographed or recorded complained to the Alberta Office of the Information and Privacy Commissioner. They claimed that the images were “personal information” and that the union had breached Alberta’s privacy legislation governing the collection, use, and disclosure of personal information.
On March 30, 2009, long after the strike and picketing had stopped, the Privacy Commissioner’s office decided that the union had engaged in the unlawful collection, use, and, disclosure of personal information.
The Alberta legislation, like most privacy legislation in Canada, contains an exemption for collection, use, and disclosure for purely “journalistic” purposes. The Privacy Commissioner’s office rejected the union’s argument that its activities were purely journalistic — it was clear that one of the purposes was to dissuade people from entering the casino in an attempt to affect the outcome of its labor dispute with the employer.
The Privacy Commissioner’s office also rejected the union’s argument that its activities were implicitly authorized by provincial labor legislation, which authorized the picketing but did not expressly authorize the collection, use, and disclosure of personal information in relation to such activity. The union’s suggestion that individuals had consented by crossing the picket line in light of the sign notifying that crossing would constitute consent was also rejected — on the basis that individuals who wished to cross the picket line had no reasonable opportunity to decline or object.
In the course of its reasons, the Privacy Commissioner provided a useful analysis of how privacy legislation might apply to the recording of events that occur during a labor dispute. For example, the Privacy Commissioner’s office said that the recording of activities on the picket line could be authorized where the purpose was “to gather evidence that could be produced, should the need for such evidence arise relative to an investigation such as a police investigation, or relative to a . . . proceeding relating to conduct of the picketing or incidents on the picket line.”
Even if such an investigation or proceeding had not yet begun, recording could be justified where an investigation or legal proceeding was reasonably likely to arise. Although the existence of the live labor dispute between the union and the employer met this requirement, the union’s activities were found to exceed the scope of this narrow authorization.
In summary, the Privacy Commissioner’s office made a number of observations about the collection, use, and disclosure of personal information in the form of video recordings during labor disputes:
- The existence of a legitimate “evidence-gathering” objective does not provide carte blanche to engage in excessive or inappropriate collection of personal information. The collection must not exceed what is reasonably necessary to meet the “evidence-gathering” objective.
- Whether a particular instance of collection is excessive or inappropriate will depend on the facts. For example, the angle and proximity of the video camera to the subjects may be inappropriate and render the collection improper.
- It may be necessary to run video cameras continuously during the course of picketing (rather than only when an incident arises) in order to capture events that arise suddenly and possibly also to record the fact that there were long periods of peaceful picketing. As well, in some circumstances it may be appropriate to take still photos when an incident arises if this is necessary to improve the level of detail of the evidence that is recorded.
- It is critical that any information collected be kept secure and be viewed only by those who need to see it in order to locate information actually needed for an investigation or legal proceeding. Any information not required must be deleted on a regular basis as soon as practicable after it is recorded and it is known that it will not be required for an investigation or legal proceeding. Failure to comply with these restrictions may result in the use or disclosure losing its authorized status as “reasonable for the purpose of an investigation or legal proceeding.”
- Notice of the authorized “evidence-gathering” purpose of the collection of personal information by video camera, along with the identification of an appropriate contact for the purpose of answering questions, may be required.
These observations will undoubtedly assist employers the next time a union tries to film picket line activity. But beware — they may also restrict employers, who are often the parties doing the filming in an attempt to obtain an injunction.
Contact the author, Derek Knoechel
