PubPeer, a website that encourage researchers to share anonymous critiques of published research, is amping up its legal fight against a scientist who is trying to unmask some of its hidden users.
Yesterday, lawyers for the website filed a motion to quash a subpoena filed on behalf of a cancer researcher who claims that PubPeer comments noting potential image irregularities in his publications cost him a lucrative new job. The researcher is suing the commenters for defamation, arguing they made baseless suggestions of misconduct. But PubPeer’s legal team yesterday submitted an affidavit from an expert in scientific image analysis that concludes there were in fact irregularities in several of the researcher’s figures.
In a related development, PubPeer’s anonymous moderators yesterday laid out their position on the case in a Wired op-ed. And one anonymous commenter has gone to court in an effort to be dropped from the case.
In October, Fazlul Sarkar of Wayne State University in Detroit, Michigan, sued the PubPeer users who posted comments about some of his papers. He claims that their suggestions of misconduct caused the University of Mississippi to rescind its offer of a tenured faculty position that he had accepted. Sarkar filed suit in a Wayne County circuit court against multiple “John Does” for defamation and interference with a business relationship, among other claims. And because PubPeer’s moderators have refused to turn over any information the site has collected about these posters, Sarkar also subpoenaed PubPeer in an attempt to unmask them.
Yesterday’s filings address a key issue that could determine whether the case moves forward: To persuade the court to unmask the commenters, attorneys say, Sarkar will need to show that his defamation suit has a reasonable chance of success.
That could be a steep hill to climb, says Paul Rothstein, a professor of torts, evidence, and civil litigation at Georgetown University Law Center in Washington, D.C. When it comes to matters of public interest such as the results of medical research, “the courts are usually very reluctant to interfere with the first amendment right to speak and criticize,” he says. And judges typically “tolerate vigorous and aggressive debate” in forums like PubPeer—meaning that Sarkar may need to show that the comments were actually defamatory to identify his John Does.
In yesterday’s brief to the circuit court, PubPeer’s lawyers contended that the comments in question didn’t clear that bar. Many of the comments point out apparent similarities between images purported to represent different experiments, and several commenters also criticize Sarkar on the basis of these concerns. (“It's not hard to imagine why Wayne State may not have fought to keep him,” one person wrote in June, after Sarkar’s new position was announced.) But the PubPeer lawyers argue that Sarkar’s complaint didn’t precisely lay out what parts of the comments he considers defamatory and that in fact no comment actually accuses him of research misconduct. “They express opinions, sarcasm and hyperbole, or facts that, even if false, would not be defamatory,” they write.
Rothstein thinks that argument might be overstated—the posters do implicitly accuse Sarkar of “false research,” he says. But he strongly doubts the court will be convinced Sarkar could win a defamation case. That’s in part because PubPeer’s legal team went a step further: They hired John Krueger, formerly an investigator at the U.S. Department of Health and Human Services’ Office of Research Integrity (ORI), to take a look at the images in question. Krueger, who spent 20 years investigating claims of scientific image manipulation, reviewed 28 issues raised about Sarkar’s papers in PubPeer comments—most of them so-called Western blots that illustrate the presence of certain proteins in a sample. “With respect to every image or set of images that I examined, I concluded that there was strong evidence to believe that the images at issue were not authentic or contained other irregularities,” Krueger writes. He does not suggest that these issues are evidence of misconduct, but notes that if he were presented with the figures while working at ORI, he would have referred the matter to the researcher’s host institution to conduct an investigation using the original data.
Presenting evidence that an allegedly defamatory claim might actually be true at this stage in the legal process is “unique but not unprecedented,” says Matthew Kelley, a media lawyer at Levine Sullivan Koch & Schulz LLP in Washington, D.C. (The firm also represents AAAS, which publishes ScienceInsider.) Kelley, who has represented anonymous online speakers and is a co-author on an annual review of attempts to identify them, says it’s not clear what role the affidavit will play in a judge’s decision of whether to quash the subpoena. The standard for what a plaintiff must demonstrate to unmask a defendant differs from state to state, and in Michigan, it’s an open question whether Sarkar will need to present evidence that the statements on PubPeer are false before the court can force PubPeer to hand over identifying information, he says. But Michigan might have an occasion to resolve the issue if the parties keep fighting to the appellate court.
Sarkar’s lawyer, Nicholas Roumel of Nacht, Roumel, Salvatore, Blanchard & Walker P.C. in Ann Arbor, Michigan, told ScienceInsider he was out of town and unable to comment on the latest court submissions, “except to say we will fight hard.”
Meanwhile, one of the PubPeer users in question is taking steps to be removed from the case. Yesterday, H. William Burdett, a lawyer at Boyle Burdett in Grosse Pointe Park, Michigan, filed an appearance on behalf of his client, identified only by a list of comments the person has posted on Sarkar’s papers. Burdett says he has asked Roumel if he will acknowledge that these particular statements are not defamatory, which would remove them from the case. Failing that, Burdett says he’ll file a motion to have the suit against his client dismissed.