When Canadian graduate student Marie-Ève Maillé held interviews with 93 people in 2010 about a massive wind farm being built in the Arthabaska region of Quebec, she made a promise that social scientists routinely make: that her respondents would remain anonymous, and that nobody would be able to trace quotes in her thesis back to them.
Maillé, now an adjunct professor in social and public communications with the University of Quebec in Montreal, Canada, never expected that promise would be challenged in court. But a judge has sided with a company seeking access to the data in a legal case that has Canadian scientists up in arms. The issue has exposed the fact that "academic privilege"—special rights granted to researchers—and researcher-participant confidentiality are little more than conventions without a legal basis.
In a letter published in the Le Devoir newspaper earlier this month, more than 200 Quebec scientists expressed fear that the case will stifle participation in research. Maillé frets that it will tempt more corporations to use the legal system to deter researchers from testifying or undermine their credibility. “Every time someone will want to get rid of a scientist in a lawsuit, they will just try to get the data, and some researchers will probably give up the data,” she says.
Maillé offered to testify as an expert witness on behalf of area residents when they filed a class-action lawsuit against wind energy company Éoliennes de l'Érable in November 2012. (The plaintiffs are seeking redress for nuisance during construction and operation of the turbines.) But Maillé withdrew her offer after Superior Court Justice Marc St. Pierre ruled on 13 January that she has to provide the company's defense lawyers with access to her research materials, on the grounds that they could contain material “relevant” to the case.
Maillé—whose 2012 thesis in French is here—received a letter last spring indicating that she may be held in contempt of court. She recently filed a request that St. Pierre review his ruling; if he doesn’t retreat, Maillé hopes to take the issue to a higher court, if she can find the funds. Nothing in Canada compels a university to absorb legal costs on behalf of faculty members or affiliates, but the government of Quebec may step in with funding, says the province’s chief scientist, Rémi Quirion.
The current system for overseeing research involving human subjects in Canada is based on little more than “moral suasion,” notes David Robinson, executive director of the Canadian Association of University Teachers (CAUT) in Ottawa. There has only been one legal case in which academic privilege and researcher-participant confidentiality were on the table: In 2014, CAUT funded a legal challenge on behalf of two University of Ottawa criminology professors resisting police efforts to obtain records related to a study about male escorts. One of their subjects was Luka Magnotta, who murdered a Chinese international student and mailed parts of his body to schools and political parties.
Quebec Superior Court Justice Sophie Bourque ruled that the duo did not have to relinquish their data. Although academics don't warrant a “class privilege,” she said, academic-participant confidentiality can be awarded on a case-by-case basis, provided it meets the criteria of an existing four-step legal principle, known as the Wigmore test, which balances public interest in maintaining confidentiality against the court’s interest in getting at the truth.
Robinson says that decision offers researchers a “limited” measure of protection with respect to confidentiality. “It’s not an absolute. It’s not like solicitor-client confidentiality. But it’s not bad.”
But Ted Palys, professor of criminology at Simon Fraser University in Burnaby, Canada, calls the Wigmore test “a bit of a crapshoot.” He agrees that Canadian law does not provide for academic privilege. "There’s nothing special about researchers," Palys says. "It’s all about the participants. They’re the ones that have the privilege.”
Palys, who co-authored a book about research confidentiality, says broad academic privilege doesn't exist in other countries either. In the United States, he adds, the National Institutes of Health and the Department of Justice have the authority to offer so-called "certificates" providing confidentiality for certain studies on a case-by-case basis. There has been one legal challenge to such certificates, but the U.S. Supreme Court refused to hear the appeal.