Confidentiality obligations
Confidentiality obligations
Some ethical issues, such as the duty of confidentiality, are legally-binding. In the United Kingdom, researchers must consider the duty of confidentiality, which arises from common law. This duty applies when confidential information is shared with a person in circumstances where it would be unfair or inappropriate for that information to be disclosed to others. In research, this obligation typically arises when participants provide information with the expectation that it will be kept private and used only for agreed purposes. The duty of confidentiality is therefore applicable when researchers handle identifiable or sensitive information about individuals, particularly when it has been collected through interviews, surveys, recordings, or other forms of direct participant engagement.
In essence, this applies when someone shares information with another person in confidence. If there is a clear agreement about how that information should be kept confidential such as through a consent form this can form a contract, even if it is not written down. Sharing information covered by such an agreement may amount to a breach of confidentiality and potentially a breach of contract. Therefore, consent forms should allow participants to specify what information they are comfortable being shared with other researchers.
Confidentiality obligations can also arise without an explicit agreement, particularly where the circumstances would reasonably lead someone to expect that the information is private. However, confidentiality is not absolute and is not protected by legal privilege. Researchers may still be required to disclose data if ordered by a court or requested by the police during an investigation.
There are circumstances where confidential information can be shared without breaching this duty. One key exception occurs when a participant provides informed consent for their confidential information to be used and shared for research purposes. In such cases, researchers must obtain explicit consent, which involves a clear and specific statement indicating that the participant agrees to the use and potential sharing of their confidential information. This consent can be given in writing, verbally, or through other forms of communication such as sign language.
For this reason, best practice is to avoid making overly absolute promises about confidentiality in consent forms. Instead, researchers should clearly explain the limits of confidentiality and acknowledge that there may be circumstances where data must legally be disclosed.
A university research team conducted interviews with patients about their experiences with healthcare services. Before sharing the dataset with other researchers, the team removed names and other identifying details from the transcripts. Participants had previously given explicit consent for their anonymised data to be shared for research purposes. By anonymising the data and obtaining clear consent, the researchers were able to share the dataset while maintaining their duty of confidentiality.
In a study about housing conditions in a small rural community, researchers collected detailed information about participants’ living situations. Although direct identifiers were removed, the dataset still contained specific descriptions of unique homes and neighbourhoods. The research team realised that individuals might still be identifiable. As a result, they modified or removed sensitive details before sharing the data to prevent possible breaches of confidentiality.
During a social research project examining online harassment, participants shared sensitive information about their experiences. The researchers promised confidentiality but also explained that there were legal limits to this promise. Later, a court requested access to certain information related to an ongoing investigation. In this situation, the researchers were legally required to disclose the requested data, demonstrating that court orders can override confidentiality obligations.