Emerging Tort Issues in the Collection and Dissemination of Internet-Based Research Data

Abstract

IntroductionThis article examines the possible basis for legal liability of researchers who use the Internet in the collection of research data. In particular, it examines the potential legal issues associated with the protocols of ethnographers who use listserv, discussion board, blog, chat room and other sorts of web or Internet-based postings as the source of their data. The author assumes that the forum for participation is legitimate, in that the list, board, blog, chat, etc. is not created or otherwise concocted by the researcher, but involves situations akin to off-line practices where a researcher would be listening to the conversation or watching the behavior of in a public place. Since these practices do not involve direct interview or interaction with or treatment of subjects, much of the precedent involving negligence, informed consent, and related issues is not relevant; however, it is reviewed initially for guidance in suggesting the applicable, legal standards of conduct. This article does not discuss the use of the Internet as a collection device, e.g., in online surveys. Issues of legal harm arising from claims in negligence, privacy, and defamation for subsequent dissemination of such postings are evaluated. it is concluded that the likelihood for a success of such claims is small, analysis will include steps that researchers can take to ensure that such risk remains negligible.Claims Based in Tort Law: General Concepts of Harm (Negligence)Is there any legal liability for researchers who observe (parallel to ethnographers who watch or listen to participant interaction in public places without interaction with or prodding of the to act or respond)? More accurately, is there a potential for liability of researchers who read the text of comments posted by others (the subjects) in various Internet or web-based forums, then analyze that text, and publish summarizations or excerpts of that text in reports, articles, or other scholarly communications? For liability to exist, some legal injury must be perpetrated in that act. The most common cause of action for such injury would be to claim that the researcher is somehow negligent for the injury that would result from either the alone or from dissemination of that observation. Personal injury law in the United States is known as tort law; in other legal traditions the term delict is often used. Commentators have concluded that the likelihood of suit against researchers in increasing: Although the case law on human subject research is just beginning to emerge, plaintiffs should be able to successfully establish negligence claims against researchers by establishing a duty of care based on the special relationship between researchers and subjects (Jansson, 2003, 262). However, these cases involve human in clinical, medical, or related studies. Even within this genre of cases, situations where no physical harm is perpetrated, e.g., a claim based on a failure to continue inclusion in the study, much to the frustration of the (Spenceley v. M.D. Anderson Cancer Center, 938 F. Supp. 398, S.D. Tex. 1996), have not met with success. Moreover, recovery of injury from either intentional or negligent infliction of emotional distress in those jurisdictions that recognize such claims must be linked to a physical injury or the threat of one (Morreim, 2003, 70). The question is whether any injury, other than a specific harm such as a violation of privacy or defamation (for re-publication by the researcher of a statement made by a participant), is perpetrated by merely observing or listening to another's conversation or comment when that expression is text-based and made in an open forum on the Internet, or whether any harm results from the dissemination of that conversation or comment. Since this observation does not involve an invasive act into the physical space of the participant, as opposed to a medical group that while perpetrating no harm or injury to a patient (the operation was indeed successful) substitutes another surgeon for the preferred one, a so-called ghost doctor, can be subject to a claim of battery, Perna v. …