To a certain degree, social enquiry raises many of the issues that surround the concept of academic legality, but surprisingly there is no set law for social research. Legal regulation operates from a dichotomous position that both assists and hinders social science research. Academic institutions rely heavily upon ‘the quality of knowledge and upon its effective commercial exploitation’ (Monotti & Ricketson, 2003, p.424). This juggling act between the commercial value of academic research and legality has seen an increase in the legal regulation of social enquiry. This concept of law has emphasised the power struggle surrounding the access and protection of information, data handling, and Intellectual Property Rights (IPR). In principle, legal regulations seem like a rational course of action in order to conduct social research. It does not mean that in practise social scientists are bounded by the concept of law, but they are certainly prohibited and assisted to research in a certain way (Dworkin, 1977: Hart, 1961). IPR and the ‘Data Protection Act’ (1998) are commonly used as regulatory measures that can in many ways make social enquiry seem like an exercise in cutting state regulated red tape. At the same time, the state allows access to millions of public documents, administration and information under the guise of a ‘Freedom of Information Act’ (2000). This state controlled legal regulation has enabled researchers to explore online documents from the public sphere, who now have a duty to provide information upon request. However, much of this ‘free’ information is exempt and what is available subject to a process of Orwellian sanitisation. Research is also assisted and hindered by ‘The Data Protection Act’ (1998) a schematic process that researchers must legally subscribe to when dealing with sensitive data. This legal duty can protect researcher and “data subject” alike. Others may testify that this process is a laborious procedure that may take months to access basic information. In light of this, criticisms over data protection have come to the fore in recent years. For example, the recent ‘Durant v Financial Services Authority’ debacle called into question the terminology of the 1998 act. Michael Durant was personally dissatisfied with the loose terminology that was riddled with ambiguity like ‘personal data’ a problem that was identified in previous evaluations of 1984 act (Sizer & Newman, 1984). Importantly, the Durant affair identified the pressure that law puts on data control. Furthermore, the importance of clear terminology is paramount in defining laws that are open to interpretation, and what essentially form the basis for such legislation (Charlton, 2004). IPR is another measure that incorporates various protectionist measures for social science research. Here researchers are presented with the problem of keeping ‘an idea to oneself and the commercial utilisation of that idea; [both] are inherently contradictory notions’ (Phillips and Firth, 2001, p. 11, text in squared brackets added). Perhaps the most widely recognised form of IPR is copyright. This can be beneficial, as the researcher enjoys moral rights and in some instances and the ‘right to the exploitation, for a limited duration, the creative output of the intellect’ (Phillips and Firth, 2001, p.5). However, since the rise and development of the internet: the level of controlling IPR is problematic (Rosenberg, 1999). Issues still surround the slippery concept of “original works” in IPR. This can often mean the protection of traditional academic formats (books, journals), and increasingly more commonplace works such as maps, directories and catalogues (Monotti & Ricketson, 2003, p.68). After considering the question put forward, one can see that the legal regulation of social science research is a contradictory process that assists research in some aspects, but hinders it in others. What is clear from this discussion is the complex ambiguity that surrounds legal regulation in social science research. This debate comes as a result of wide spread self interest from all parties involved, be it the red-tape bureaucracy of accessing a local authority’s spreadsheet, or the commercial exploitation of IPR from within universities. Perhaps, the most disappointing aspect of this whole debate is the fact that there has been no room to discuss how the research processes have enriched legality and how research can gain more protection and access. In conclusion, legal regulation represents a necessary act that protects both researcher and subject. More must be done to provide clear outlines that inform institutions and researchers alike, improving access to information whilst simultaneously minimising hindrance. However such a utopian outlook would need much deliberation than the brief outline that has been sketched here.
Chalton, S. (2004) ‘Reflections on Durant v FSA: The Court of Appeal’s Interpretation of “Personal Data” in Durant v FSA – A Welcome Clarification, Or a Cat amongst the Pigeons?’, Computer Law and Security Report, 20 (3), 175-81
Dworkin, R. (1977) Taking Rights Seriously. London: Duckworth
Hart, H. L. A. (1961) The Concept of Law. Oxford: Clarendon
Monotti, A. and Ricketson, S. (2003) Universities and Intellectual Property: Ownership and Exploitation. Oxford: Oxford University Press
Phillips, J. and Firth, A. (2001) Introduction to Intellectual Property Law. Fourth edition. London: Butterworths
Rosenberg, R. S. (1999) ‘Free Speech on the Internet: Controversy and Control’, in Pourciau, L. J. (ed) Ethics and Electronic Information in the Twenty-First Century, Indiana: Purdue University Press
Sizer, R. and Newman, P. (1984) The Data Protection Act: A Practical Guide. Aldershot: Gower