Legal/ethical issues in oral history-Slander/Libel

Jodine Perkins's picture

Dear colleagues,

I am helping to manage a research project that involves helping adults make a digital story (a video/automatic slideshow made of images, photographs, and a recorded narration by the creator) of their experiences being a caregiver.  The study is based in British Columbia, Canada. What they create is very similar to an oral history output, hence my posting to this list. The goal is that they have their own digital story at the end, which we can post to the project website, and they can also have a copy of for their own use.  In the study we also evaluate this activity as a way to support caregivers.

The workshop is over several sessions. As the participants are starting to create their digital stories, it has emerged that one of the participants wants to use the digital story in order to prove to the authorities that the participant was not engaged in activity that seems to have resulted in a court case. The other individuals involved seem to be alive still and there may be an active protection order. There is a bit of confusion because English is the participant's second language. We also have not asked too many probing questions as the focus of the method is to help the person tell their own story, not be a fact-checking journalist or even a scholar writing their own research article about the content of the story (our research is on if the method works).

So, the PIs and workshop facilitator are concerned about slander and legal issues if the participant's creation goes out in the world. Ideally we want to post the participants' outputs on our project website, but if we are concerned about the content (or for any other reason) we don't have to do that under the terms of the study. But what if he goes on to use it for to try to influence a court case? Or to slander a person involved in the case by giving it to the media? I don't think we would be at risk, but I'm not sure. I wanted to get some feedback from the oral history community before going to my university's research office because I'm concerned they will not really understand the situation unless I can frame it better (as we all know oral history issues is not what they often deal with). The participant has signed an informed consent for to participate in the study/workshops,  but the release form for the finished story isn't signed until it's finished and ready to be deposited with us.

If we don't post the final digital story but instead just turn it over to the creator, are there potential legal issues? if so what? Are there ethical issues in not posting it like the other outputs (again our ethics form did not promise it would be, and our recruitment info doesn't talk about it either. The focus is on giving the story to the creator).

If there is an active court case/protection order does that change things? Who would I ask?

What else am I not even thinking about?

Help!

I'm happy to provide more details in email.  My email is jodmperk@mail.ubc.ca.

Thanks!

Jodine Perkins

University of British Columbia

 

 

 

 

 

 

Hello Jodine,

I'd encourage you to get legal advice on this issue. In the US, if you were to put the story online and it did turn out to be libelous, your institution would be a second publisher of the content and therefore equally responsible. Whether there would be any risks associated with recording the narrative in the first place, I do not know. Your institution will have a better sense of what level of risk they'd be willing to take on.

I do not believe it would be unethical to withhold publishing it, so long as you are clear with the participant about why it cannot be published. On the flip side, if you are concerned that they could be incurring legal risks for themselves (even if you aren't certain), I think it would be unethical to allow them to continue without alerting them to the possibility.

Ideally, I would recommend encouraging the participant to pick another topic that could be safely published, so that they get the full benefit of participating. If there is a language barrier, finding someone to help translate your conversation would be the best course.

Best of luck,
Liz Strong