On Academic Freedom for Police Researchers

Law in books

In Norwegian law, the academic freedom is regulated in the University and University College Act, Section 1-5.⁸ The rule was expanded in 2007 in order to underline that the academic freedom protects both the university or university college, and the individual researcher, teacher and student (NOU 2006: 19).

It follows from the rule that universities and university colleges shall promote and protect academic freedom. This is closely connected with the duty to ensure that teaching, research and artistic or scientific development work maintains a high quality. The institutions may not be instructed regarding the academic content of their teaching or the content of research or artistic or scientific development work or individual appointments.

It follows further from the rule that the institutions cannot be instructed on the methods etc. concerning their teaching, within the framework of the subject. A researcher has the right to choose his or her subject and methods within the framework of the position.

The principle of academic freedom is not mentioned in the Norwegian Constitution. However, in my opinion, this principle should be included in the curriculum on the freedom of expression at the relevant universities. Not only teachers and researchers, but also government officials, etc. should have a thorough knowledge of the rules and principles of academic freedom.

… and law in action

Working as a legal researcher in an environment of researchers from the social sciences, psychology and the police, I am aware that the world may seem too much like a well-ordered place to a lawyer: This is the law, these are the written sources, and this is how to interpret the normative texts. Thus, we can know the law in books (though it is not always easy to draw the line between legal and illegal behaviour). Alas, the world is not so simple. How are the rules applied in real life? Are they well known? Do the people in power adhere to them? Will a researcher on a temporary research grant feel confident enough to stand up against a powerful employer? (UNESCO et al., 2017).

These are important questions. The battle for academic freedom is not won just by pointing to the law. But even though the ideal can probably not be reached fully (Hessen, 2018, p. 41), we need to look to the law to see where we should be headed. Only by having a good grasp of law in books, we can work on making the law in action conform to the law and the principle of academic freedom.

The freedom of the academic institutions

As the principle of freedom of expression applies to everybody, the question arises: To what extent does the principle of academic freedom give any more leeway than the general rules?

Even though the principle of freedom of speech applies widely, academic freedom gives both researchers and universities and colleges more freedom than would follow from the general rules on freedom of expression.

Academic freedom means that universities and university colleges have a freedom to organise their work. This implies both deciding on the content of the curriculum and deciding who to appoint for positions as teachers and researchers.

This article is not the place to give a substantive overview of the laws governing academic freedom in different countries, but I will refer to some examples.

One example of a recent law stating the principle of academic freedom is the UK Higher Education and Research Act 2017, Section 36. The Act states that institutions are free to “determine the content of particular courses and the manner in which they are taught, supervised and assessed” and to “determine the criteria for the selection, appointment and dismissal of academic staff and apply those criteria in particular cases”. In October 2017, an MP, Mr. Chris Heaton-Harris, wrote to the vice-chancellors of the universities and asked for the names of the professors being involved with teaching European affairs, “with special reference to Brexit”. Furthermore, he asked for “a copy of the syllabus and links to the online lectures”. This did not go down well with the universities. Though the universities minister claimed that the MP was doing research for a book, the letter was considered by many as an attack on the academic freedom of the universities and academics (Mason, 2017).

In Denmark, the freedom of research is anchored in the University Act, Section 2, paragraph 2. In Sweden, the principle follows from the Higher Education Act, Section 6. In Finland, the principle of the universities’ right to self-government follows from the Act relating to the Universities, Section 3. An overview over Nordic perspectives on academic freedom is given by Haugen (2013).

Freedom for the academic personnel

The freedom of institutions will often go hand-in-hand with the freedom of the academic personnel. But their interests may differ: Researchers and teachers cannot be instructed concerning their methods and conclusions.

Of course, a teacher in criminal law has to stick to the topics in the subject. And as a teacher, one has to inform the students about the general consensus of the research on the subject. This does not mean that the teacher cannot raise critical issues, but it should be made clear when the teacher departs from the general consensus of the field. If a teacher should be of the opinion that prison is never harmful to the prisoner, this should come with a very clear signal that the opinion is not representative for the scientific community. If a researcher holds that a national statute cannot be enforced because it would be contrary to human rights or the constitution, he or she must also make the students aware of other views on the question. As the adage says: To break the rules, you must know them.

A researcher does not speak on behalf of his or her institution. Sometimes, when academic personnel voice controversial opinions, the opinion is met by a demand that the leadership of an academic institution clarifies whether this is the view of the institution – and maybe challenges the leadership to write against the academic. An academic institution does not have to comment upon the opinions voiced by the academic staff. It would be contrary to the idea of academic freedom if deans or governing boards saw it as their task to write contrary opinions whenever a researcher voiced a controversial view (Ottersen, 2017).

As has been stated earlier in the article, the free discussion between academics is vital. Academic freedom is not a freedom from being contradicted. It may help to look to the difference between discussions on the horizontal level and pressure applied vertically. If a researcher voices disagreement with a colleague, that is as it should be. However, if a researcher is summoned before his superiors to explain himself, or the superiors correct the researcher in public, that would not be in accordance with the principle of academic freedom.

In some cases, a research report is published by an academic institution. The institution may, as other publishers, be liable if the content of the research report is in violation of, e.g., rules protecting right to privacy or against defamation. It may also occur that findings in the report violate the presumption of innocence.⁹ The institution cannot be obliged to publish a report which may probably make the institution legally liable. But serious publishers would probably not be deterred by a threat of being sued in itself, and neither should academic institutions when they decide whether to publish research findings.

The principle of academic freedom also applies to students. Of course, the students will need to show that they are well acquainted with the curriculum. Nevertheless, critical comments from the students should be welcomed and encouraged.

In police research, many students are employed in the police while doing studies. Police officers are protected by the general rules of freedom of expression, of course. In Norway, there has been a discussion as to whether police officers have a duty to be loyal towards the authorities in not protesting against opinions that are voiced by, e.g., the Minister of Justice. In my view, such a view is built upon a misunderstanding of the reasons for free speech: To make the authorities better equipped to govern justly. Police officers are obliged to be loyal in enforcing law and order but are not obliged to keep silent about their field of expertise. This applies even more to police officers who are also students.

It is important to underline that the students are free – even obliged – to write their papers as free academics and not hold back from proper criticism of police policy and practice.

How can the authorities govern research?

Proper research needs funding. The authorities will be able, of course, to decide on a broader level what kind of subjects to include in a curriculum, etc. Grants for research may be given with no strings attached, leaving it to the academic institutions and the researchers what to research. Funding may also be given to specific projects, e.g. to explore a topic and publish a report.¹⁰

Both kinds of funding have their place. But even when the authorities ask for and pay for a report to be made, the report cannot be “improved” by the authorities. The authorities may, of course, publish an opinion that challenges the research report, but cannot dictate the content of the report.

Rules may be handled in two ways: Sometimes, lawyers try to find the exact borderline between legal and illegal. The other way is to treat the idea behind the law as an inspiration and a guiding principle: If we really adhere to the principle of academic freedom, to where does that principle point us? It is not necessarily good governance to test the limits of the law.

In my view, research free from constraints is important. Giving answers may be difficult enough, but sometimes researchers may ask important questions that no one else had thought about before (Hessen, 2018). The funding of research should be made in such a way that researchers have time to think about new questions. It would be a bad omen for a society if all research in a given field was done as specific projects ordered by the authorities.

The obligation to hinder crimes and report on miscarriages of justice

Under Norwegian law, all citizens are obliged to try to avert serious crimes and to inform the authorities if a miscarriage of justice has occurred in a case concerning a serious offence.¹¹ Those rules also apply to lawyers, doctors, priests, journalists and researchers, even when the information is subject to rules of professional secrecy (Holmboe, 2017).

Researchers discuss ethical questions concerning secrecy and the duty to inform the authorities (Fossheim & Ingierd, 2013). However, these questions arise for everyone who depend on the trust of people confiding in them about personal issues, e.g. priests (Leer-Salvesen, 2017; Leer-Salvesen & Andreassen, 2017). Thus, the ethical questions must be considered within the framework of the law.

This duty to alert the authorities may be difficult to relate to, but does not raise more difficult questions for researchers than for many other professionals. Thus, the researchers should know the gist of these rules. The rules do not infringe the researchers’ academic freedom. But there are other rules that are unclear and may hamper proper research: The rules on the duty of secrecy and the protection of sources. As the theme of this issue of the journal is police research methods, I want to focus on a question that can have important implications for a police researcher: How to get information from a source who does not want to be identified by the authorities?

Journalists’ right to protect their sources

As I have indicated earlier, the protection of the sources of the press is derived from the need to protect the principle of freedom of expression (Kjølbro, 2017, pp. 1012–1015). Both investigative researchers and journalists perform an important task in shedding light on questions that could otherwise go unexplored. The rules under Norwegian law differ, though, and the researcher’s right to maintain confidentiality varies with the researcher’s employment and how he or she has gained access to the information. I cannot go into rules from other jurisdictions, but must mention that under Norwegian law, the protection of sources for researchers is nowhere as clearly regulated as the rules concerning journalists. This in itself may create difficult questions for researchers (Bjørnebekk, 2013). It is a difficult question whether a researcher could invoke similar rules of protecting sources as journalists can. I will come back to this question shortly, but first give an overview of the rules relating to the media.

Journalists are entitled to a high level of protection of sources. Under Norwegian law, the main rule is that journalists may not be questioned about the identity of their sources, and their material (notes, recordings etc.) may not be seized if this can lead to the identification of the journalist’s sources. An exception is made if there is “an overriding requirement in the public interest” for exposing the source.¹²

The principles of protecting journalists’ sources are derived from the ECHR Articles 8 and 10. The European Court of Human Rights (ECtHR) has held that questioning journalists about their sources may have a “chilling effect” on the work of the press.¹³

The Norwegian Supreme Court has interpreted the rules on protecting the sources of the press in favour of the journalists, as the press is fundamental to the freedom of speech in a democratic society. A recent example is The Supreme Court’s decision concerning a documentary film maker who had interviewed young people who were suspected of joining a terrorist group (the Rolfsen case).

In connection with the investigation of a case into violations of Section 147d of the Penal Code of 1902,¹⁴ the police had seized unpublished video footage from a documentary film-maker, cf. Section 197, Subsection 2, second sentence, of the Criminal Procedure Act. The film-maker was working on a film documenting why Norwegian citizens allow themselves to be recruited as foreign fighters in Syria. The Supreme Court overturned the seizure. The material was fit to reveal unidentified sources, causing Section 125 to come to apply. In its considerations pursuant to Section 125, the Supreme Court did take into consideration that weighty public interest concerns spoke in favour of granting the prosecuting authority access to the material. On the other hand, strong concerns for the protection of sources were also present in the case, and any doubts as to whether the protection of sources must yield, should favour the protection of sources. Given the weighing of interests and the broad protection of unpublished material fit to reveal the identity of unidentified sources established by the ECtHR pursuant to Article 10 of the ECHR, there were no grounds on which to yield the protection of sources.¹⁵

The Supreme Court found that Mr. Rolfsen’s documentary was “at the heart of investigative journalism”. The Court recognised the importance of the issues at stake, and concluded (para 71):

On this basis an especially strong need to protect sources exists. Considerations relating to the investigation of such a serious matter also carry great weight. However, the police have a number of investigation methods available in cases such as this one, and it is unclear how necessary the information in the seized film material is to the investigation. Another aspect of the overall assessment is that B’s journey to Syria was prevented when the search took place.

The Supreme Court remarked that the Court of Appeal had been in considerable doubt as to whether the protection of sources should be waived, but had held in favour of the prosecution. When in doubt, the preparatory works to the law had stated that the interest of the press should prevail. The prosecutor was therefore not allowed to seize the film maker’s material.¹⁶

As can be seen, the rule on confidentiality of the sources of the press is not absolute. Nevertheless, the Norwegian press generally holds that it will not reveal sources even when compelled to do so by a court (Aarli, 2015, p. 409; Øy, 2013, p. 36). A source speaking to a journalist may be reasonably sure that his or her identity will not be revealed – at least not by voluntary disclosure by the journalist. (If the protection of sources is not upheld, however, the police may seize material that discloses the identity of the source.) The jurisprudence of The Supreme Court also gives the journalist good reason to expect that he or she will seldom be ordered to reveal his or her sources.

When can researchers protect their sources?

As the principle of academic freedom is closely connected to what methods a researcher may apply, it is an important question to what extent a researcher can expect to be allowed to keep his or her sources confidential.¹⁷

For researchers, there is no general rule on the protection of sources in Norwegian national law. The question of whether a researcher can – or must – decline giving testimony in a court of law, depends, inter alia, on whether the researcher has a duty of secrecy. Breach of the duty is punishable,¹⁸ but the duty can also be seen as a resource: It may be easier to get a source to talk if the researcher is obligated to keep the identity of the source secret.

A researcher who does not render services to, or work for, an administrative agency, will not have a statutory duty of secrecy unless he or she has gained access to personal information, etc. according to The Public Administration Act, Section 13 e.

Anyone who performs any service or work in connection with a research assignment which an administrative agency has supported, approved, or to which it has provided information subject to a duty of secrecy, has a duty to prevent others from gaining access to or knowledge of information subject to a duty of secrecy which the researcher obtains from an administrative agency, or information received from private sources upon pledge of secrecy in connection with the research. The duty of secrecy also applies to information concerning persons who are dependent upon the body which has arranged for their contact with the researcher.¹⁹

However, the statute regulating the use of testimony from witnesses who are under an obligation of secrecy, does not refer to researchers who are not employed by an administrative agency, even if the research has been supported by such an agency. It is therefore held in legal theory that the ban on testimony does not apply to them.²⁰

For researchers who are employed or doing service for an administrative agency, the ban on giving testimony applies, but it does have exceptions. The duty of secrecy does not bar the researcher from giving information about violations of the law to the prosecuting authorities or the relevant supervising authority if this is deemed desirable in the public interest. The relevant government Ministry may also waive the duty of secrecy if the case is deemed to be so serious that the interest of the private party must give way to the interest in putting the information before the court. The court may override the decision of the Ministry.

Thus, the rules differ according to the employment of the researcher, and according to whether the researcher’s project has got support or information from an administrative agency. The situation of the different groups can be summed up like this:

Thus, researchers may find themselves obliged to testify in court. It is, therefore, ill-advised if a researcher promises his or her informers confidentiality under all circumstances. This unclear legal landscape may in itself have a chilling effect on the sources’ willingness to cooperate with the researcher.

When the researcher is obliged to testify in court, the police may also seize, e.g., notebooks, recordings, etc. if they are deemed to be significant as evidence.²¹ (When the researcher is not obliged to testify in court, material which is in the possession either of the researcher or of a person who has a legal interest in keeping it secret, cannot be seized.)²²

That the rules concerning researchers’ protection of their sources are difficult to interpret, has been known for a long time. Twenty years ago, professor Eivind Smith (1998) recommended that the rules should be clarified, taking into account the principles of ethics in research.²³ Since then, the rules concerning journalists’ right to protect their sources have been clarified and expanded. In Norway, we have got a new Code of Civil procedure, and a government-appointed committee has put forth a proposal for a new Code of Criminal Procedure. We have got a new Act on the Universities and – twice – new acts on ethics in research. None of these acts or the preparatory works discusses the question of protecting the sources of researchers.²⁴

It is not clear how a researcher would fare, should he or she deny answering a question about the identity of a source. If the duty of secrecy does not apply, internal Norwegian law does not give the researcher any right to refuse to answer a question as a witness in a court case. There are, however, some indications that a researcher should be able to argue that he or she should have a similar right as a journalist has to refuse to identify the source of his or her research.

The widening of the scope of the press’s right to protect its sources is built upon the case law from the European Court of Human Rights concerning the ECHR Article 10. Researchers in Norwegian universities and university colleges are obliged to research, teach and disseminate the results of research and academic and artistic development work (Kierulf, 2017).²⁵ In a relatively new judgment, the European Court of Human Rights found that a university professor taking part in a public debate could not be held to a stricter standard of proving allegations than would a journalist.²⁶ This judgment concerned the question of whether the applicant could be sanctioned for his allegations. But both the questions of sanctioning a citizen and of protecting sources are fundamental to free speech. Both can have a chilling effect on the right to receive and impart information.

In the EU General Data Protection Regulation (GDPR), academics are put on the same footing as journalists:

Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.²⁷

The GDPR does not regulate the question of confidentiality. But it does carry some weight that the preamble puts academics and journalists on the same footing and connects this rule to the right to freedom of expression and information:

The processing of personal data solely for journalistic purposes, or for the purposes of academic, artistic or literary expression should be subject to derogations or exemptions from certain provisions of this Regulation if necessary to reconcile the right to the protection of personal data with the right to freedom of expression and information (Preamble to the GDPR, para 153).

This connection between journalistic and academic purposes is an indication that academic freedom is deemed to be important in a democratic society. Researchers work with a longer perspective than journalists, but that can hardly be a sufficient reason for treating them less favourably.

If we imagine a researcher getting information from the same young people as in the Rolfsen case, it would be difficult to explain why the researcher should be obliged to reveal his or her sources. Nevertheless, no case concerning a researcher’s right to protect the identity of his or her sources has been decided by the Supreme Court so far. The Supreme Court’s ruling in the Rolfsen case is relevant to the case if a researcher holds that he or she is not obliged to reveal sources, but it is unclear whether the researcher would win the case. In my view, the best advice to researchers must still be that they do not promise their sources absolute confidentiality, as this promise may be legally and practically impossible to honour.

The principle of academic freedom should lead to practical results. The development in the protection of the sources of the press should lead the legislator to clarify the rules concerning secrecy and protection of sources for researchers, to avoid the chilling effect of the current legal uncertainty.