Belfast Project aftermath: the legal implications
Times Higher Education
Smita Jamdar considers the legal questions for universities arising from the Boston College case
There are three issues here. First, consent: are universities sufficiently aware of the risks to research subjects in participating in the project, and in particular the legal rights (the privilege against self-incrimination or the right to privacy, for example) that they might be de facto waiving as a result of taking part in the project? And do they communicate these clearly to the research subjects?
Second, do universities understand and communicate the limits to the duty of confidentiality the research subjects will be owed if the university finds itself under a court order to disclose, for example, or if there is otherwise a public interest in disclosure?
Finally, in research projects where there is a high risk of legally sensitive material being generated, do universities have clear guidance as to when specific legal advice should be obtained? Universities’ codes of research ethics may touch on these issues, but often not in enough detail to ensure “high risk” projects are picked up at the outset.
We are occasionally asked to advise on what to do after the event – in other words, once a project has gathered information that is potentially damaging to participants – but rarely at the project planning stage.
It would be a real pity if fear of legal consequences were to prevent research into what almost by definition will be some of our most potentially significant oral histories, particularly when these are legal risks that can be mitigated if properly managed.
But institutions are now so concerned about their wider reputations that one has to fear that there might indeed be a chilling effect.
Smita Jamdar is partner and head of education at law firm SGH Martineau.