The Wigmore Criteria
1. the communications must originate in a confidence that they will not be
disclosed.
"Without confidence there can be no privilege."
Make your pledge clear and unambiguous, and mean it.
Avoid informed consent statements of the type SFU’s Research Ethics
Board (REB) apparently
still recommends. In the U.S. such statements have been seen as "waivers of privilege," and hence
are not advisable.
Problems: Brajuha; Atlantic Sugar; R. v. Gruenke
2. this element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties.
The general case is easy; but consider whether it is integral to your research.
Undergo ethics review; establish the relationship.
Ask participants whether it is important; record their responses.
Privilege belongs to the participant, not the researcher.
Problems: Farnsworth, Scarce.
3. the relation must be one which in the opinion of the community ought to be
sedulously fostered.
For the most part, this criterion would be met via expert
testimony. Many possible communities to consider, including:
- the research community
- the community of which participants are members
- the social policy communities who seek independent research information for policy
formulation and implementation processes
- the broader citizenry, who benefit from the knowledge created through research
4. the injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct
disposal of litigation.
The balancing test.
US courts offer mixed decisions regarding researchers. More likely to grant privilege
when:
- Threat appears to be part of a strategy of harassment
- Researcher is independent;
- Relevance of information to case at hand is not demonstrated;
- Information available from other sources.
Courts highly consistent regarding research participants, whom they protect.