Michigan State Court of Appeals Hears Arguments in PubPeer Litigation

Attorneys representing pathologist Fazlul Sarkar and users of the post-publication peer review website present their cases regarding the constitutionality of subpoenaing for the identities of anonymous commenters.

By | October 5, 2016

Attorney Bill Burdett (standing), representing “John Doe” in Fazlul Sarkar vs. John Doe, makes oral arguments to judges Colleen O’Brien (left) and Elizabeth Gleicher (right) as Alex Abdo (seated), the ACLU lawyer representing PubPeer, stands by.BOB GRANTYesterday’s Michigan State court of Appeals hearing (Fazlul Sarkar vs. John Doe) was the latest installment of an ongoing legal battle that could have a major impact on anonymous, post-publication peer review of the scientific literature.

In litigation that has dragged on for almost two years and so far involved hundreds of pages of legal documents, the lawyer representing Fazlul Sarkar, a pathologist formerly of Wayne State University in Detroit, has sought to unmask the identities of anonymous commenters on the post-publication peer review platform PubPeer, who he claims defamed Sarkar by pointing out alleged image irregularities in papers Sarkar coauthored. A Wayne County Circuit Court March 2015 ordered PubPeer to reveal the IP address of one of the commenters, the mysterious misconduct watchdog who goes by the pseudonym “Clare Francis,” but protected the identities of other PubPeer posters. Sarkar’s attorney, Nicholas Roumel, appealed the decision to protect the identities of the commenters, while PubPeer, represented by lawyers for the American Civil Liberties Union (ACLU), appealed the decision to unmask Clare Francis.

See “What to Do About ‘Clare Francis’

This latest face-off between the parties’ attorneys—which took place in a Detroit courtroom half filled with lawyers arguing unrelated cases—will eventually result in an opinion from the appeals court judges that will either uphold or reject Roumel’s subpoena of PubPeer for the identities of the anonymous commenters who raised questions about Sarkar’s work. According to Roumel, the judges will likely deliver that opinion soon. “I think it’s going to be three to six weeks,” he told The Scientist. “I wouldn’t be surprised if it was two weeks.”

No matter the judges’ opinion, the case is likely to continue being argued through Michigan courts. “This case is important, not just for the right to anonymous speech, but for scientific discourse,” Alex Abdo, the ACLU attorney representing PubPeer, told The Scientist. “If we don’t prevail here, we’ll try to go to the Michigan Supreme Court.”

The appeals court hearing consisted mostly of a rehashing of the case facts and discussion of the court rules that govern such litigation.

Roumel restated the career damage—the rescinding of an offer of a position at the University of Mississippi being the most severe—that he argued was a result of anonymous PubPeer comments on Sarkar’s work. And he expressed his frustration in navigating the pursuit of a defamation case against anonymous defendants. “I cannot stress enough the burden that that would place on a plaintiff’s attorney to not only have a complaint drafted to the extent that we’ve done, but to have every piece of evidence done and to investigate a case where we don’t know the identity of the people behind it,” he told the judicial panel, “and to be able to present all those things as I normally would in a case to the court before I can even proceed.”

Abdo reiterated the First Amendment’s protection of anonymous speech and again claimed that the PubPeer comments in question did not constitute defamation. “When you’re talking about facts that are in the public domain, you’re stating your opinion,” he said. “And the First Amendment has always protected that right. Sometimes people disagree with the opinions of others, but we live in a free society. We don’t live in one in which the courts can be used to patrol the terms of scientific debate.”

At one point during the hearing, Abdo mentioned a Wayne State University investigation of Sarkar’s alleged misconduct that was cited in some of 18 associated retractions. Judge Elizabeth Gleicher quickly quashed talk of the investigation, as the institutional inquiry is not a part of the official record in this case. Roumel seemed miffed by Abdo’s mention of it.

Neuroscientist Brandon Stell, a cofounder of PubPeer, was also at the hearing. After the session closed, he told The Scientist that the site’s insistence that anonymous comments be based on publicly verifiable facts protects it from hosting defamatory statements. “If all arguments are based on publicly verifiable information, if somebody is grinding an ax when they’re making an argument, we don’t really care,” he said. “As long as it’s a solid, publicly verifiable argument, it doesn’t matter what the motivation was for leaving that comment. If there’s ax-grinding, I don’t see it as a huge problem as long as we enforce the publicly verifiable information criteria.”

As the appeals court judges draft their opinion for this round of Fazlul Sarkar vs. John Doe, several questions remain. Will Clare Francis eventually be unmasked? Will the identities of anonymous commenters in general be subject to discovery if other researchers feel they are defamed?

In an email to The Scientist, Clare Francis expressed no concern that his/her identity would be revealed. If Sarkar’s attorney is granted access to his/her identity, Francis said he/she would simply “point out that he [Sarkar] is a fraudster, as evidenced by 18 retractions.”

See “PubPeer Has (Probably) Stopped Collecting Anonymous Commenters’ IP Addresses

Because of the nature of these types of legal proceedings, these questions will not be answered by the opinion submitted in this specific case, but it’ll help the attorneys representing both parties determine their next steps. “It’s a long journey,” Roumel told The Scientist. “If they win, then all they win is that they’ve quashed the subpoena, which means I can’t subpoena people from PubPeer. That doesn’t dismiss the case. But the practical effect would be that I would end up dismissing.”

At stake is the protection of anonymous post-publication peer review. “It’s extremely important that scientists feel as comfortable as possible participating in this conversation and giving their assessment of published research so that we can change the way that science is communicated,” Stell told The Scientist.

Further reading

PubPeer’s Appeal for Anonymity Continues,” The Scientist, January 21, 2016

Debating the Value of Anonymity,” The Scientist, October 5, 2015

PubPeer Founders Revealed,” The Scientist, August 31, 2015

Judge Wants Info on PubPeer Commenter,” The Scientist, March 23, 2015

Judge: PubPeer Users Remain Anonymous,” The Scientist, March 6, 2015

Top Science Scandals of 2014,” The Scientist, December 25, 2014

PubPeer Pushes Back,” The Scientist, December 11, 2014

Pathologist Sues PubPeer Users,” The Scientist, October 27, 2014

Setting the Record Straight,” The Scientist, October 2014

PubPeer: Pathologist Threatening to Sue Users,” The Scientist, September 22, 2014

Concerns Raised Online Linger,” The Scientist, August 25, 2014

PubPeer Threatened with Legal Action,” The Scientist, August 19, 2014

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Avatar of: Weishi Meng

Weishi Meng

Posts: 16

October 6, 2016

What a joke! The Court demanded that the identity of one Sarkar attackers be revealed and what we got is the pseudonym Clare Francis? So, what is the identity of the PubPeer attacker whom the Court said cannot remain anonymous? In other words: Who is Clare Francis then? Please comply with the Court order!

The reason why anonymous science accusers should be banned and prosecuted is that there are enough instances where they have used the Clare Francis-Retraction Watch defamation platform to launch personal attacks. 

Initially, the founders of Retraction Watch worried they would not get enough stories to cover. So, right around the time the blog came into existence in August 2010, Clare Francis, also surfaced and relentlessly accused scientists of misconduct (the writing is on the wall by now). In turn, the blog scorned and pilloried anyone right after the anonymous whistleblower by himself or through Clare Francis managed to elicit some reaction from the journals, be it an expression of concern or a retraction.

This seemed like quite an effective strategy to boost the blog, particularly since Clare Francis and others have been aggressively accusing scientists of fraud and plagiarism. If the anonymous accusers were successful in eliciting damning reactions from the journal editors, Retraction Watch would get a juicy story and a chance to pillory the incriminated scientists. On the other hand, if the cowards were not successful or the accusation proved to be false, there would be no consequence for them or Retraction Watch, since the journals typically do not inform the public or institutions that they have received a false accusation.

Inspired by recent reports on harassment to scientists, Science Transparency decided to investigate the matter further. We sought to find out what proportion of accusations by Clare Francis or the cowards operating anonymously or allegedly on behalf of Retraction Watch had any merit to the point that they would eventually result in retraction. Sadly, most editors had not collected statistics on false accusations by Clare Francis or by those hiding in anonymity, yet they all agreed that the false positives constituted at least 90% of the accusations.

In regards to those enduring false accusations of misconduct through the Clare Francis/ Retraction Watch machine, Paul S. Thaler, possibly the most successful lawyer in the field, had this to say:

The first thing to remember is that the federal regulations, as well as the internal policies of most institutions, protect the confidentiality of respondents in research misconduct matters.  Thus, as a matter of federal law, institutions are prohibited from disclosing the identity of an accused scientist, except on a “need to know” basis, for example, to a member of the investigation committee, unless and until a finding of research misconduct is made.  These proceedings are not public as court is in criminal and civil disputes.  It is more comparable to proceedings against other professionals, such as lawyers, who are governed by their licensing organization.  Privacy in these matters is critically important as there is no public need to, or right to know, about professionals simply accused of wrongdoing.  What the public has a right to know about is a professional who has been found responsible for wrongdoing.  At that point, the public is alerted.  But because a professional’s reputation is so important to his or her career, the specter of an accusation can permanently stain that reputation and frequently the accusation is not well founded.  So the confidentiality of the process allows a full examination before the public is made aware.  We certainly do want to know about those scientists who have actually done something wrong that impacts science, but we do not, and should not, be concerned with those who are good scientists but caught up in a sometimes very political, internal dispute.

It is our expectation that the scientists that have been wrongly accused and pilloried through the Clare Francis/Retraction Watch machine or its contributors will eventually sue those responsible in Court. The writer of this piece may be contacted (weishilaurameng@gmail.com) to help coordinate some of the effort.

A complete story will be published today at Science Transparency. Meanwhile you may read on this matter at:

https://scienceretractions.wordpress.com/category/retraction-watch/

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