Oral history operates within a context of informed consent which can be said to have been given if it is based upon a clear appreciation and understanding of the facts, implications, and future consequences of an action. In order to give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts at the time consent is given. Impairments to reasoning and judgment which may make it impossible for someone to give informed consent include such factors as basic intellectual or emotional immaturity, severe learning disability, severe mental illness, intoxication, severe sleep deprivation, dementia, or being in a coma.
Oral historians need to focus not merely on gaining informed consent to enable the recording to begin, but should also inform participants about how the recording will be stored, preserved and used in the long-term, and how confidentiality, where promised, will be maintained. To ensure that consent is informed, consent must be freely given with sufficient information provided on all aspects of participation and data use and reuse. There must be active communication between the parties. Consent must never be inferred from a non-response to a communication such as a letter.
It is important to recognise that this notion of ‘informed consent’ that has underpinned oral history ethical best practice (and much other research) is different from the GDPR definition of the term ‘consent’. Interviewees still need to be fully ‘informed’ about, agree to, and be able to withdraw from the process which they are participating in. This can be achieved by using a pre-interview participation agreement.
Consent is only one of the legal bases available under GDPR to legitimise the processing of personal data, such as the making, storage and use of an oral history interview. You should be certain of your legal basis before beginning the interview, and the interviewee should be informed of the basis on which the recording is being made. Note that the legal basis that you choose to use determines which of the individual’s rights and which exemptions may apply to the activity.
You should also be aware that, when relying on consent for the publication or dissemination of an archive recording, you will also need the consent of every person who is identifiable from the interview, not just the interviewee, and this may be prohibitively difficult.
If you do choose to use consent as your legal basis, one of the key changes under GDPR is that consent to the use of personal data must be active (no pre-ticked boxes), clear, affirmative and distinguishable from other matters, and provided in an intelligible and easily accessible form, using clear and plain language. Consent needs to cover both the holding of personal data and its further processing (use).
OHS advice therefore (drawing on British Library policy) is that for the processing of personal data for archival purposes a data controller should normally rely on the legal basis of ‘the performance of a task carried out in the public interest’ where legally able to do so, or on ‘legitimate interests’ where they are not. The processing of Special Category Data (previously called ‘sensitive personal data’: see below) requires an additional legal basis. For the processing of Special Category Data for archival purposes, a Data Controller should rely on Section 4(a) of Schedule 1 of the Data Protection Act 2018 – ‘necessary for archiving purposes… in the public interest’.
One of the characteristics of consent under GDPR is that it can be withdrawn at any time. If consent is withdrawn then you cannot substitute another legal basis to continue processing that data. This is why it is advisable to use one of the other legal bases other than consent when creating material for a permanent historic archive, hence the OHS recommendation above.