'The legal issues that are likely to affect your institutional e-portfolio system will vary depending [on] a range of variables, for example, the developmental process that produced your system, the nature of the data it is envisaged will be stored in that system, the range of people who it is envisaged will have access to the data, and the means by which learners may make the data in their e-portfolio available to others'
Charlesworth and Home (2004)
Charlesworth & Home (2004, 2005 & 2006) from Bristol University raise the following legal issues regarding e-portfolio systems:
- How will you ensure that your e-portfolio system adheres to data protection legislation?
- What are the issues regarding ownership and intellectual property rights (IPR) of materials in your e-portfolio system?
- How will you know that your e-portfolio system is accessible by all learners?
- How will you protect your institution from misuse of the e-portfolio system by learners?
- How will you detect and guard against plagiarism?
Any personal data in the e-portfolio system should be held in accordance with the Data Protection Act. Charlesworth and Home (2004, 2005 & 2006) emphasise the importance of data controllers adhering to the Data Protection Act (DPA) 1998 when processing personal data which is typically transferred from an institutional student database system to the e-portfolio system.
They state that it is important that an institution includes the e-portfolio system when outlining the purpose of an institution’s processing of personal data to the Information Commission. This should specify any changes to the e-portfolio system which may impact on Data Protection.
They also emphasise the adherence to the DPA of multiple data controllers in multi-institutional systems where personal data may be transferred between institutional systems or to third parties such as work experience providers. Institutions need to make clear to learners about who does and who does not have access to their data in the e-portfolio system.
In the case of the EELLs project, because student data was being transferred outwith the institution to another e-portfolio system, the learners participating in the study were asked to sign a data consent form outlining the data protection policy for the EELLS e-portfolio. In other JISC projects such as FILE-PASS, institutions have provided tutor access to learners’ e-portfolios; this should be made clear to the learners when they are introduced to the system.
No system can be guaranteed to be 100% secure so users should be made aware of the potential issues in holding certain materials on their e-portfolios such as:
- Medical records: it is important for the individual’s sake that these are not tampered with, and their use and privacy has been a matter of concern and debate for many years
- Government records, nationally and locally, including:
- Criminal and police records
- Tax, contribution, benefit and welfare records
- Nationality, residency and passport records
- Financial records: banks and similar institutions have always kept these carefully, and they may bear on criminal and tax matters.’ (after Ward et al 2004).
Charlesworth & Home (2004 & 2006) state that many learners are unaware of the potential liability they, and the institution, may be under with regard to issues such as defamation, breach of copyright, obscenity and indecency when publishing their materials to the web. It is important to have appropriate procedures and training in place for dealing with these issues. Downes (2004) states there is an element of risk as blogging may begin as a piece of personal publishing but inevitably results in a conversation which must remain unconstrained.
However, the risk in the controversial nature of blogging has been known to contravene legislation; Downes (2004) cites a case where legal action was taken against a university resulting from a student’s posting about a fellow student and a teacher.
Institutions should consider publishing guidance to learners (and to staff) concerning publishing on the web using institutional resources. Rules and sanctions need to cover such issues as inappropriate material, breach of copyright and breaches of IPR. Examples of this are available at the University of Warwick and on the front page of the FILE-PASS website. In the ePISTLE project, before being introduced to the system, school learners were reminded of the code of conduct of using an e-portfolio system.
It is recommended that a risk assessment exercise regarding this area should be carried out; information on how to go about this can be found in our Risk Management infoKit.
Due to its very personal nature, the e-portfolio may minimise the potential for collusion and plagiarism. Baume (2003) (whilst referring to paper-based portfolios) states that a portfolio should allow each student to focus on their own particular interest and therefore reduce the possibility of plagiarism.
However, when discussing the use of an e-portfolio for entry into higher education, admissions tutors in the ePISTLE Project were concerned about issues of plagiarism and considered the use of a plagiarism detection tool or filter similar to TurnitinUK to help highlight potential risks in e-portfolios.
In Aschermann’s (1999) study, learners were concerned about their materials being plagiarised because their e-portfolios were publicly available; other learners could use their private materials and this might help them with job applications. DiBiase (2002) expresses concern about ‘cyber-plagiarism’ because it appears that by publishing learner work on the web, this could lead to more plagiarism.
Another consideration is that of ‘double counting’ or self-plagiarism. It is good practice for learners to reference their own work.