Sharing participant videos with client and data protection

24 Nov 2011 - 9:22pm
2 years ago
5 replies
657 reads
Enz
2011

 

Hi All

I’m in a little bit of a dilemma, I’ve just been asked to handover to a Client the video capture of participants in a user study (initial agreement was a report of findings & recommendations).  I now want a written statement from the client to say they will keep the participants data safe etc. and will only share the data with those involved in the project (as was promised in original informed consent forms given to participants).

I’m having difficulty finding an example of this type of form/statement online and was just wondering if anyone could point me in the right direction, or share one of their own examples.

Thanks Enz 

 

Comments

25 Nov 2011 - 9:05am
Chauncey Wilson
2007

Hi, Did your client approve the consent form?  If so, then you were an agent of your client and representing them so they would likely be bound to the consent agreement that they approved.  I am not a lawyer, but my wife is an IP attorney and I can check with her about this general issue.  The best thing here, I believe, is to have a statement or email or something that says that your client approved your research plan and consent form.  Now, that said, if there was nothing explicit about who "owns" the videos, you are likely bound to hand them over, but you can remind them of the consent form and that they should not use the videos, for say, marketing or sales or they might end up in a lawsuit.  You also need to review your contract with them which might say that they own all artifacts of your research (unless there was something specific about them not getting the videos). 
This issue is coming up on another discussion group.  Frankly, if I were a client, I would want the raw videos (though I would agree that they are for internal use as a good client and would follow the dictates of the informed consent) so I can perhaps examine it later.  I think that a client does have the right, unless excluded by contract, to review any artifacts and assess the quality of the report.  Chauncey
 On Fri, Nov 25, 2011 at 3:25 AM, Enz <enzib@ymail.com> wrote:

 

Hi All

I’m in a little bit of a dilemma, I’ve just been asked to handover
to a Client the video capture of participants in a user study (initial
agreement was a report of findings & recommendations).  I now want a written statement from the
client to say they will keep the participants data safe etc. and will only
share the data with those involved in the project (as was promised in original informed
consent forms given to participants).

I’m having difficulty finding an example of this type of
form/statement online and was just wondering if anyone could point me in the
right direction, or share one of their own examples.

Thanks Enz 

 

(((Please leave all con
25 Nov 2011 - 4:53pm
Enz
2011

Hi Chauney

Thanks so much for your reply, this is really helpful. The Client did see the informed consent form & tasks, so maybe i can just remind them of this when i hand over the  videos. 

On the other point you raised about the client having the vidoes, I really believe the videos are such a powerful tool in demonstrating key issues to the client - it can be a real eye opener for them & it backs up your findings : )
Many thanks
Enz

 

 

25 Nov 2011 - 10:33pm
Jared M. Spool
2003

Hi Enz,

We run into this all the time.

First, we learned about this problem the hard way and now put into our contracts a specific non-disclosure agreement that the client will keep all data safe and treat it as their own. Also, if the data contains sensitive personal information, as is common when we study e-commerce as we capture credit card and banking information, we may also negotiate that the client grants indemnity to us in case there is a privacy problem with any data we release.

It's unlikely you have done that. Now, you can try to get your client to sign a document after the fact. (A simple non-disclosure, that mimics the non-disclosure you used for your participants will likely do the case. At least it would here in the US.)

However, in the US, if they commissioned you to do the work and you didn't explicitly talk about it in your contract, then they own all the work products. The videos and data would certainly be considered work products, independent of any agreements you made with the participants. 

The good news is, again here in the US, any agreements you made with the participants would be on behalf of the client and thereby it could be argued they are bound to it.

I don't know what the rules for work-for-hire contractual agreements are in the UK. You'll have to check that out.

One tactic could be to inform your client that they are responsible for the privacy of the data if you release it to them. Is their corporate counsel willing to put on paper that they accept that responsibility and will (a) treat the data as their own and (b) indeminify you if there is any privacy violation (and subsequent legal action), covering any legal fees and actions that the participants or their agents may take. Here in the states, any sane corporate counsel would think twice about agreeing to that.

Hope that helps,

Jared

28 Nov 2011 - 9:20am
Enz
2011

 

Thanks Jared

We did not clarify who had ownership over all artefacts  produced from the study - in this instance I do not mind the client having the videos, but can I ask (because I have to render the videos for the client to be able to view them) – do you just give clients the raw data or do you hand over the rendered / finished/ edited  copy, or both? 

We hadn’t given much thought about who owns the data, so now it’s very vague to ourselves and the client. The client was not even expecting videos initially, we felt they needed to see the evidence and possibly show it to their managers, which has brought up this issue.  But I would also like to control the work load that occurs at the end of a project and maybe hand over a selection of videos instead of all – in which case (from what you are telling me), we should have stated this in the initial contract ?  (I must say the clients appear to be reasonable and i've already told them i will give them a selection of the videos, but i don't want to make this mistake again in the future with another client).

My main worry was the participants’ data being protected - the client already provides a statement on their site over data protection (so I wasn’t worried about data collected via their site). But I also wanted to be sure the client takes the same care with the data I hand over to them.

Thanks
Enz

 

7 Dec 2011 - 5:17pm
Jared M. Spool
2003

Hi Enz,

You're right that you want to get in the habit of specifying this stuff up front. You should know what will happen with any data, artifacts, or in-progress work you'll produce at the end of the project. (In the US, many contracts and service agreements specify that the client gets everything.) Discussing this as you're nailing down the details of the project gives you a lot more flexibility and prepares everyone for the final deliverables.

I think you have every right to say to your client, "We weren't expecting to give you these. Frankly, we didnt think about it (and probably should have). We can give you the raw files easily. If you'd like us to render, finish, or edit them in any way, we'll need to charge you $X for each video."

Again, you can do this with every client. You can either tell them up front they have to decide if they want the videos, or let them decide towards the end of the project (after they've determined if it's worth it or not). In the past, we've made video delivery an additional cost for some clients. Some said they were willing to pay, others didn't think it was worth it.

Jared

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