On May 8, 2025, the Court of King’s Bench of Alberta released its decision in Clearview AI Inc. v Alberta (Information and Privacy Commissioner) (the Decision). The Decision found that certain provisions of Alberta’s private-sector privacy law which limit the scope of “publicly available” information violate subsection 2(b) of the Charter and are therefore unconstitutional. The Decision is noteworthy since it is the first time the constitutionality of certain sections of the Personal Information Protection Act (PIPA) has been considered.
Background
The Decision arose following a joint investigation by the Privacy Commissioners of Alberta, British Columbia, Quebec, and Canada into whether Clearview AI’s (Clearview) facial recognition tool breached private-sector privacy laws. The tool scrapes images and data from publicly accessible online sources to produce a facial recognition database.
Clearview argued that the personal information of Albertans its tool amassed was exempt from the requirement to obtain consent prior to its collection, use or disclosure under PIPA because the information was “publicly available” online. In relevant part, section 7(e) of PIPA’s regulation defines when personal information is “publicly available” as when it is “contained in a publication, including, but not limited to, a magazine, book or newspaper, whether in printed or electronic form”.
Following the investigation, the Privacy Commissioners issued a joint report (the Joint Report) which concluded Clearview was in breach of privacy laws in each of their respective jurisdictions. Of note, the Joint Report found the “publicly available” exception to consent did not extend to information available from online sources. Accordingly, Clearview was required, according to the Privacy Commissioners, to obtain consent from individuals for the collection, use and disclosure of their personal information in connection with its facial recognition tool, which it had failed to do.