Research involving human participants sometimes involves asking people to share information that, if disclosed to a third party, could cause them serious harm. Researchers have an obligation to safeguard information that is entrusted to them and to use that information only for the purposes agreed to with the participant. The ability to promise confidentiality is crucial, as this promise can enable researchers to gather data and information on sensitive or controversial topics and can be particularly important in studies that involve vulnerable or marginalized individuals/populations.
Conflict can sometimes arise for researchers when the ethical obligation to provide assurances of confidentiality is challenged by a legal obligation to disclose data pursuant to a court order. A researcher may identify the potential for a challenge to confidentiality when designing or planning the study, or there may be an actual demand by third-party sources to disclose data during the life of the study, after data is collected, or when disseminating the findings. In either case, legal advice may be needed.
The legal basis for protecting research data
Canadian law protects communications between individuals from forced disclosure in court under particular circumstances, called “privileges.” These are created either by statute or by belonging to a class of relationships that courts have determined merit special protection in the public interest. The best-known class protection is the lawyer-client privilege, which allows clients to confide in their lawyers for the purpose of obtaining legal advice. For example, communications between a researcher and their lawyer about how to protect the confidentiality of participants would be privileged, and no court could force disclosure.
At present, there is no class protection for communications between researchers and their participants. In cases where there is no established privilege, the responsibility rests with the individual who receives a demand to persuade a court that their communications should be privileged under their particular circumstances. Courts make these decisions by applying a set of principles called the Wigmore criteria (see Appendix A in the Resources section).
It is critical that researchers are well informed from the outset about how to arrange their research protocols to make the case for the protection of participants’ confidentiality. Appendix B contains some best practices for researchers who will be conducting human participant research. Depending on the nature of the research and the risk to confidentiality, researchers may need to obtain independent legal advice.
Canadian challenges to researcher-participant confidentiality
To date, several Canadian cases have challenged researcher-participant confidentiality. In all cases, the researchers obtained approval from their institution’s research ethics board/committee on the basis the participant’s identity would not be revealed, and their data would not be shared beyond the research team. For more information and a recent overview, please refer to the following resource: Ted Palys and John Lowman, "Eight Challenges to Research Confidentiality in Canada: Invoking and Protecting Research-Participant Privilege," in Perspectives on Evidentiary Privileges, ed. Chris Hunt (Toronto: Thomson Reuters, 2019): 213-237.