- Email: [email protected]
Letters, Libel, and the Law
ETHICS AND LAW/CONCEPTS
Letters, Libel, and the Law Gerald F. O’Malley, DO Carl R. Chudnofsky, MD Terry L. Jenkins, JD, BSN, RN David N. Sontag, JD
From the Department of Emergency Medicine, Albert Einstein Medical Center, Philadelphia, PA (O’Malley, Chudnofsky); Huff, Poole and Mahoney, PC, Virginia Beach, VA (Jenkins); and Choate, Hall and Stuart, LLP, Boston, MA (Sontag).
Authors of scientific articles and journal editors are subject to antidefamation publication laws. We describe our experience with an accusation of libel. We define libel as it involves the medical literature and explain the ways in which threats of libel influence editorial decisionmaking and lead to negative publication bias by presenting examples drawn from the medical and legal literature. [Ann Emerg Med. 2009;53:354-357.]
0196-0644/$-see front matter Copyright © 2008 by the American College of Emergency Physicians. doi:10.1016/j.annemergmed.2008.08.009
Those involved in scientific journalism, including journal editors, authors of articles, and even authors of letters to the editor, are subject to antidefamation publication laws, which individuals and corporations can manipulate to block fair scientific evaluation of their work. Contributors and editors in the field of medical literature should be familiar with libel accusations to get a sense of when and how potential suits emerge and to appreciate the influence and effect that libel lawsuits and threats can have on editorial policy. Scientific writers should also be familiar with antidefamation law so that they avoid making defamatory statements and recognize when companies are falsely accusing them of libel. Defense of a libel lawsuit is expensive and time consuming, whereas accusations and threats to sue are free and require little effort. As such, they can serve as an effective tool for censoring and controlling the editorial content of a journal.1-3 Although it may be impossible to stop all baseless lawsuits from going forward, the scientific community can do its part to maintain a forum for the free and open exchange of ideas and opinion while not surrendering to threats or pressure from third parties and at the same time protect individuals’ reputations by publishing research that is not defamatory. Our experience illustrates the importance of scientists knowing the laws of libel. In October 2006, Annals of Emergency Medicine published a letter describing our experience with a prospective institutional review board–sanctioned observational study of a new Food and Drug Administration–approved device to noninvasively measure carboxyhemoglobin manufactured by a corporation based in Irvine, CA.4 We stopped our study early because, in our opinion, the device did not accurately or reliably measure carboxyhemoglobin levels in patients presenting to the emergency department. Shortly after publication of the letter to the editor, we received a letter from attorneys representing the manufacturer, accusing us of libel and demanding a written 354 Annals of Emergency Medicine
apology and a formal retraction. We responded to the manufacturer’s letter and assured them that our team had no interest in harming or promoting the manufacturer in testing the device and was instead reporting on a scientific inquiry in a peer-reviewed forum. No apology or retraction was offered. We have not heard again from the manufacturer or its lawyers, and we suspect that the letter was intended to discourage us from further publicizing our experience with the device. Scientists must know the legal definition of defamation, the different forms defamation can take, and the appropriate legal defenses to the charge so that they are prepared to respond if they are faced with a similar accusation. If scientists know that a corporation cannot legally show that it has been defamed, they can publish with more confidence and perhaps even deter the company from bringing suit. Defamation is the harming of someone’s reputation and good name through false and derogatory communications,5 and antidefamation law exists to protect people’s interest in their reputation. A plaintiff bringing a defamation suit must be able to show 3 separate things in court: (1) that the defendant published to a third person, (2) that the publication was harmful to the plaintiff’s reputation, and (3) that the published material was of and concerning the plaintiff. Corporations and business enterprises are at times considered public figures, a designation that requires them to meet a higher legal standard to show that libel occurred. “Public” figures bringing defamation claims must prove that the defendant published a knowing or reckless falsehood about them, because courts reason that those who are in the public eye are obliged to tolerate greater criticism than “private” citizens.5 A cause of action available to corporations and other businesses and that is closely related to libel is “injurious falsehood” or “business disparagement,” in which the supposedly libelous statements impugn the quality of what the plaintiff is selling or the character of his business. An Volume , . : March
O’Malley et al example of injurious falsehood would be a proven false statement questioning the efficacy of a drug or device or procedure5-7 Antidefamation law in the United States draws a distinction between the publication of defamation through written and spoken statements. Libel is the term used to describe a written or broadcast untruth.5 Slander is the term for defamation that is published through speech or transitory gesture.8 We were threatened with a libel suit for publishing our letter and for the rest of this piece will refer mostly to libel; however, the scientific community should be aware of the possibility of slander suits for spoken comments at scientific meetings and other forums. Antidefamation law also differentiates between overt and contextual defamation. The most obvious example of libel is a written statement that will directly injure the subject and his or her reputation, which is termed libelous per se, or “in and of itself.” Statements not libelous per se may be libelous per quod, or “on the basis of or with reference to extrinsic circumstances.”5-7 In practice, this distinction means that companies or individuals can sue members of the scientific community for defamation (whether as libel or slander) based on a wide range of statements, some of which may seem neutral in the abstract but may be considered defamatory in context. An example of a statement that could be libel per se is “Administration of this medication is a risky and harmful way to treat trauma patients.” A writer can reduce the likelihood of inviting libel claims by drawing precise conclusions from fact: “This medication did not raise visual analogue scores or decrease pain scores in any of the subjects in the study; therefore, we do not recommend it for treatment of trauma patients with these symptoms.” An example of a statement that might be considered libelous on the basis of contextual circumstances is observing that “the primary author of the study protocol has a relationship with the manufacturer” after having stated that the protocol was biased in favor of the manufacturer’s product. The context of this statement implies that the author was biased because of his or her relationship with the manufacturer. Again, precision and facts are the best protection against libel claims. The statement could be rewritten in the following way: “The protocol was biased because the design, a dose-response escalation, favored the sponsor drug over the less expensive competitor.” There are several key defenses against a libel lawsuit. The primary defense is truth of the factual statements or facts supporting a published opinion. Often, however, the truth is unclear and a jury may be asked to decide what is true. Second, some statements are protected by a privilege, which protects some statements from libel liability because the speaker was compelled to speak by virtue of a subpoena or for the advancement of the greater public good. The privilege applies to statements made in crafting legislation (absolute privilege) or to circumstances in which the statement is not malicious and the Volume , . : March
Libel and the Law statement was made in the course of a legal, moral, or social duty (qualified privilege). A physician reporting domestic abuse and violence is an example of qualified privilege. In medical publishing, where facts are unequivocal, qualified privilege is provided to an author who writes an essay critical of medical procedures or decisionmaking, provided there is absence of malice. A third defense against libel accusation is fair comment, a common-law privilege to criticize and comment on matters of public interest without being liable for defamation, provided that the comment is an honest expression of opinion and free of malice.9,10 Scientific publications generally comprise expressions of opinion based on scientifically discovered fact, so this defense can serve their authors well when they are confronted with a libel suit. Libel actions against opinions such as occur in scientific publications are generally actionable only if the opinion “implies the allegation of undisclosed defamatory facts as the basis for the opinion.”11 If a defendant can show that his factual statement or the facts on which his opinion is based are true, then he is not committing libel. This defense differs from the defense of truth because it protects potentially false opinions so long as they are based on ascertainable facts. A hypothetical example shows how this defense works: A scientist runs tests of a corporation’s medical device to test its efficacy. Hard data show that the device malfunctions on each test. The scientist can form an opinion based on fact and say, “I believe that the device will not serve as a tool for helping patients.” This opinion is protected by fair comment because it is based on accurate facts. If the same scientist examined the same data and said, “I believe that the company is run by thieves and scoundrels,” this opinion would not be protected, because the scientist has no factual examples to support this damaging statement. By understanding these legal concepts scientists and journalists can minimize the risk that they will make defamatory statements and maximize the chance that any potentially defamatory statements are protected by a privilege or defense. It is also crucial for them to be familiar with instances of libel litigation so that they can appreciate the risks of publishing and the potential costs associated with potentially defamatory speech. Unfortunately, there are often significant economic and power imbalances between scientists and writers and those who make accusations of libel, and as a result libel litigation can have high costs for the community of scientific journalism. The nuances to the litigation are endless and the wealthy corporations have greater odds of achieving their goal of stifling speech against their interests (even with no finding of liability) because they have the resources to fund a protracted suit and wear down the writers. Defendant authors may petition their insurance carriers to cover legal expenses, but depending on the purpose of the article, they may not be protected, particularly if the defendant is publishing in a capacity outside what could be considered his or her academic or professional scope. Annals of Emergency Medicine 355
Libel and the Law Two notable examples show how even baseless libel accusations can lead to lengthy, expensive lawsuits. The first occurred in 1969 and involved the case of a dentist who sued the British Medical Journal (BMJ) and the British Medical Association, the owners of the BMJ.12 The dentist claimed libel because the BMJ published an article critical of an anesthetic technique using methohexitone that was closely associated with his name. Litigation lasted 3 years, and when the case finally went to trial, the BMJ published weekly summaries of the courtroom activities. The case was settled in 1972 when both parties agreed to a statement acknowledging shared concern but no admission of libel.10,13 The British Medical Association spent nearly a quarter of a million pounds (equal to US $600,000 in 1972) defending the case.10 In 1982, the BMJ, in conjunction with the British Broadcasting Corporation, spent £10,000 collecting data and checking facts before publication of another article, but they were still sued for libel and spent £107,000 in a successful defense of that case.10 A second example of a baseless but costly libel lawsuit occurred when the Journal of Medical Primatology published a letter critical of Immuno AG, an Austrian biotech company, written by Shirley McGreal, PhD, the chairperson of the International Primate Protection League in 1983.14,15 Immuno AG sued Dr. McGreal, and Dr. Moor-Jankowski, the editor of the Journal of Medical Primatology, who was performing editorial duties as an uncompensated academic activity.16 Dr. Moor-Jankowski was forced to give costly depositions in Vienna and Sierra Leone and spend two million dollars in his defense, including $70,000 out of his own private assets.17 Dr. McGreal’s insurer spent $250,000 in her defense, and only then settled with Immuno for $100,000.18 In 1989, after nearly 7 years of litigation, the Appellate Division of the Supreme Court of New York concluded that the libel suit was not actionable and the case was thrown out. The Appellate Court decision was upheld in 1991.18 Despite the absence of libel, the physicians involved were forced to give up valuable time and energy and substantial amounts of money defending themselves. Dr. MoorJankowski wrote in a letter to the New York Times, “The court victory may still not effectively protect me or other editors of small professional journals from the chilling effects of suits by wealthy corporations using our legal system to discourage criticism of their activities.”18,19 Threats of libel litigation pose an even greater danger to the scientific community: they can have a long-lasting chilling effect on editorial policy. Using the threat of libel litigation, wealthy companies can prevent important research from being published and can force journals to disclose private information about their selection and publication processes. This stifling of academic discourse interferes with the process of peer review that is essential for scientific and medical progress. There are several recent examples of how libel accusations can block journals from publishing scientists’ work. In 1983, Ned Feder and Walter Stewart, 2 staff members at the National 356 Annals of Emergency Medicine
O’Malley et al Institutes of Health, performed an analysis of the body of work of John C. Darsee, describing and summarizing Darsee’s numerous examples of fraud. The article that Feder and Stewart wrote was critical of Darsee’s coauthors and of the editors of the scientific journals in which Darsee’s work was published, questioning the care with which the coauthors and editors discharged their responsibilities. They submitted the article to Nature and shortly afterward, several of Darsee’s coauthors informed the editors through their attorneys that publication of the research would be unwarrantably damaging to them.20 The editors of Nature agreed and recommended editorial changes that Feder and Stewart found unacceptable. The authors withdrew the article and submitted it to a number of other journals, but in each case, concern for potential libel litigation prevented the journal editors from publishing the article without significant changes. Nature ultimately published an edited version of the article.21 Feder and Stewart believe that the threat of libel prevented their work from being published in its original form and in 1986 they testified accordingly at the Subcommittee on Civil and Constitutional Rights of the US House of Representatives Judiciary Committee.1 Dr. Stanton Glantz was also hurt by negative publication bias caused by threats of libel lawsuits when he tried to publish his book The Cigarette Papers, an analysis of internal tobacco industry documents.22 After publication of the documents in 5 separate articles in the Journal of the American Medical Association (JAMA) in 1995,23 numerous publishers refused the book and turned Dr. Glantz and his coauthors away because of lawsuit threats.17,24 University of California Press finally published the book in 1996. Dr. Glantz described the decision by the editors of JAMA to publish the original series of tobacco articles as “courageous.”22 Using threats of libel litigation, companies have begun to demand access to the independent processes that journals use to select and publish pieces. Recently, in May 2007, lawyers representing Pfizer issued a subpoena to several medical journals requesting all documents about the decision to accept or reject articles, copies of rejected articles, the identities of peer reviewers and the articles they reviewed, and the comments by and among peer reviewers and editors about articles, revisions, and publication decisions.25,26 On January 17, 2008, JAMA and Archives of Internal Medicine were served with a Motion to Compel production of confidential editorial judgments, unpublished articles, and unpublished peer review comments. The editors of JAMA and the Archives of Internal Medicine fought the motion, and on March 14, 2008, the court denied the motion.26 In 2001, the journal Occupational and Environmental Medicine surrendered confidential peer-review comments to comply with a subpoena and has not reported difficulty in recruiting reviewers.25 The editors at JAMA and Archives of Internal Medicine fought the subpoena and Motion to Compel because they believed that if medical and scientific journals are routinely forced to turn over confidential peer Volume , . : March
O’Malley et al review and editorial commentary, there could be a profound effect on medical publishing.26 If scientists are identified and are forced to defend their peer review in public court proceedings, there might be a reduction in the willingness of individuals to perform peer review and editorial duties. The prospect of libel litigation may serve a legitimate purpose by requiring researchers to take sober pause before communicating matters that may adversely affect a product’s or corporation’s or individual’s professional reputation. Libel litigation (or threat of litigation) should not be abused to intimidate, harass, or deter scientists from publishing critical yet dissenting material in the scientific literature. Authors and editors can use the peer review process to avoid defamation suits because peer reviewers will screen out articles that may be motivated by libel as opposed to scientific or informational purposes. Unfortunately, the peerreview process is unlikely to deter litigation that is being used to silence scientists, and can sometimes drag more individuals into the lawsuit. In November 2004, 5 individuals who performed peer review on a book about industrial pollution for the University of California Press were subpoenaed by lawyers for the chemical industry in a civil case in US District Court in Mississippi.27 In all likelihood, threats of libel will not go away because they can be very effective. Scientific writers should be familiar with what constitutes libel, study the examples illustrated in this article, and exercise due diligence to minimize or avoid it when preparing articles intended for publication and communication. To avoid making libelous statements, authors need to write their conclusions carefully, based strictly on their results, and should clearly identify and separate opinion from fact. The authors would like to thank Cecile Zwiebach for assistance in the publication of this manuscript. Supervising editor: Michael L. Callaham, MD Funding and support: By Annals policy, all authors are required to disclose any and all commercial, financial, and other relationships in any way related to the subject of this article that might create any potential conflict of interest. The authors have stated that no such relationships exist. See the Manuscript Submission Agreement in this issue for examples of specific conflicts covered by this statement. Publication dates: Received for publication November 15, 2007. Revisions received April 4, 2008, and August 1, 2008. Accepted for publication August 8, 2008. Available online September 23, 2008. Reprints not available from the authors. Address for correspondence: Gerald F. O’Malley, DO, Department of Emergency Medicine, Albert Einstein Medical
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Libel and the Law Center, 5501 Old York Road, Philadelphia, PA 19141; 215456-5838, fax 215-456-8502; E-mail [email protected]. REFERENCES 1. Beardsley T. Do libel risks prevent publication? Nature. 1986; 320:6. 2. McLean AE. Libel actions against journals. Lancet. 1991;338: 123. 3. LaFollette MC. On the horizon. In: Stealing Into Print: Fraud, Plagiarism and Misconduct in Scientific Publishing. London, England: University of California Press Ltd; 1996:200. 4. O’Malley GF. Non-invasive carbon monoxide measurement is not accurate. Ann Emerg Med. 2006;48:477-478. 5. Dobbs DW. Defamation. In: The Law of Torts: The Hornbook Series. Part IV: Economic and Dignitary Injury. St. Paul, MN: West Group; 2000. 6. Stubbs SE, Boyce WJ. The risks of libel in medical publishing. Ann Allerg. 1994;72:101-103. 7. Rozovsky LE, Rozofsky FA. Avoid libel suits by knowing the legal limits of defamation. Can Doct. 1983;49:58-59. 8. Restatement 2d Torts 568 The American Law Institute (1977). 9. Parsons D. The dangers of libel and how to avoid them. BMJ. 1993;306:253-255. 10. Smith R. Libel and medical journals: proper constraint or against the public interest? In: The Trouble With Medical Journals. London, England: Royal Society of Medicine Press Ltd; 2007. 11. Restatement 2d Torts 566 The American Law Institute (1977). 12. Anonymous. Libel and medicine [editorial]. Br Med J. 1985;290: 1302. 13. Anonymous. Martin Ware [obituary]. Br Med J. 1998;317:1323. 14. McGreal S. A project with potential to spread non-A, non-B hepatitis in West Africa. J Med Primatol. 1983;12:280-282. 15. Fersko R. Responsible exchange of ideas and libel law. J Natl Cancer Inst. 1992;84:450-451. 16. Immuno V. Moor-Jankowski, Appellate Division, Supreme Court, First Judicial Department in the County of New York, January 17, 1989. 17. Kuehn RR. Suppression of environmental science. Am J Law Med. 2004;30:333-369. 18. Brahams D. Libel suit over letter to the editor. Lancet. 1991;337: 1403-1404. 19. Moor-Jankowski. New York Times. January 25, 1991; Opinion section:C. 20. Anonymous. Fraud, libel and the literature [opinion]. Nature. 1987;325:181-182. 21. Stewart W, Feder N. The integrity of the scientific literature. Nature. 1987;25:207-214. 22. Glantz SA, Slade J, Bero LA, et al, eds. The Cigarette Papers. Berkeley, CA: University of California Press; 1996. 23. Glantz SA, Barnes DE, Bero L, et al. Looking through a keyhole at the tobacco industry. The Brown and Williamson documents. JAMA. 1995;274:219-224. 24. Weiner J. The cigarette papers. Nation. January 1, 1996:11-18. 25. Guterman L. Journals resist a drug company’s subpoenas, citing the threat to peer review. Chronicle of Higher Education. Available at: http://chronicle.com/daily/2008/03/2286n.htm. Accessed August 1, 2008. 26. DeAngelis CD, Thornton JP. Preserving confidentiality in the peer review process. JAMA. 2008;299:1956. 27. Guterman L. Peer reviewers are subpoenaed in cancer lawsuit against chemical companies. Chronicle of Higher Education. Available at: http://chronicle.com/weekly/v51/i13/13a.02001. htm. Accessed August 1, 2008.
Annals of Emergency Medicine 357
Letters, Libel, and the Law Gerald F. O’Malley, DO Carl R. Chudnofsky, MD Terry L. Jenkins, JD, BSN, RN David N. Sontag, JD
From the Department of Emergency Medicine, Albert Einstein Medical Center, Philadelphia, PA (O’Malley, Chudnofsky); Huff, Poole and Mahoney, PC, Virginia Beach, VA (Jenkins); and Choate, Hall and Stuart, LLP, Boston, MA (Sontag).
Authors of scientific articles and journal editors are subject to antidefamation publication laws. We describe our experience with an accusation of libel. We define libel as it involves the medical literature and explain the ways in which threats of libel influence editorial decisionmaking and lead to negative publication bias by presenting examples drawn from the medical and legal literature. [Ann Emerg Med. 2009;53:354-357.]
0196-0644/$-see front matter Copyright © 2008 by the American College of Emergency Physicians. doi:10.1016/j.annemergmed.2008.08.009
Those involved in scientific journalism, including journal editors, authors of articles, and even authors of letters to the editor, are subject to antidefamation publication laws, which individuals and corporations can manipulate to block fair scientific evaluation of their work. Contributors and editors in the field of medical literature should be familiar with libel accusations to get a sense of when and how potential suits emerge and to appreciate the influence and effect that libel lawsuits and threats can have on editorial policy. Scientific writers should also be familiar with antidefamation law so that they avoid making defamatory statements and recognize when companies are falsely accusing them of libel. Defense of a libel lawsuit is expensive and time consuming, whereas accusations and threats to sue are free and require little effort. As such, they can serve as an effective tool for censoring and controlling the editorial content of a journal.1-3 Although it may be impossible to stop all baseless lawsuits from going forward, the scientific community can do its part to maintain a forum for the free and open exchange of ideas and opinion while not surrendering to threats or pressure from third parties and at the same time protect individuals’ reputations by publishing research that is not defamatory. Our experience illustrates the importance of scientists knowing the laws of libel. In October 2006, Annals of Emergency Medicine published a letter describing our experience with a prospective institutional review board–sanctioned observational study of a new Food and Drug Administration–approved device to noninvasively measure carboxyhemoglobin manufactured by a corporation based in Irvine, CA.4 We stopped our study early because, in our opinion, the device did not accurately or reliably measure carboxyhemoglobin levels in patients presenting to the emergency department. Shortly after publication of the letter to the editor, we received a letter from attorneys representing the manufacturer, accusing us of libel and demanding a written 354 Annals of Emergency Medicine
apology and a formal retraction. We responded to the manufacturer’s letter and assured them that our team had no interest in harming or promoting the manufacturer in testing the device and was instead reporting on a scientific inquiry in a peer-reviewed forum. No apology or retraction was offered. We have not heard again from the manufacturer or its lawyers, and we suspect that the letter was intended to discourage us from further publicizing our experience with the device. Scientists must know the legal definition of defamation, the different forms defamation can take, and the appropriate legal defenses to the charge so that they are prepared to respond if they are faced with a similar accusation. If scientists know that a corporation cannot legally show that it has been defamed, they can publish with more confidence and perhaps even deter the company from bringing suit. Defamation is the harming of someone’s reputation and good name through false and derogatory communications,5 and antidefamation law exists to protect people’s interest in their reputation. A plaintiff bringing a defamation suit must be able to show 3 separate things in court: (1) that the defendant published to a third person, (2) that the publication was harmful to the plaintiff’s reputation, and (3) that the published material was of and concerning the plaintiff. Corporations and business enterprises are at times considered public figures, a designation that requires them to meet a higher legal standard to show that libel occurred. “Public” figures bringing defamation claims must prove that the defendant published a knowing or reckless falsehood about them, because courts reason that those who are in the public eye are obliged to tolerate greater criticism than “private” citizens.5 A cause of action available to corporations and other businesses and that is closely related to libel is “injurious falsehood” or “business disparagement,” in which the supposedly libelous statements impugn the quality of what the plaintiff is selling or the character of his business. An Volume , . : March
O’Malley et al example of injurious falsehood would be a proven false statement questioning the efficacy of a drug or device or procedure5-7 Antidefamation law in the United States draws a distinction between the publication of defamation through written and spoken statements. Libel is the term used to describe a written or broadcast untruth.5 Slander is the term for defamation that is published through speech or transitory gesture.8 We were threatened with a libel suit for publishing our letter and for the rest of this piece will refer mostly to libel; however, the scientific community should be aware of the possibility of slander suits for spoken comments at scientific meetings and other forums. Antidefamation law also differentiates between overt and contextual defamation. The most obvious example of libel is a written statement that will directly injure the subject and his or her reputation, which is termed libelous per se, or “in and of itself.” Statements not libelous per se may be libelous per quod, or “on the basis of or with reference to extrinsic circumstances.”5-7 In practice, this distinction means that companies or individuals can sue members of the scientific community for defamation (whether as libel or slander) based on a wide range of statements, some of which may seem neutral in the abstract but may be considered defamatory in context. An example of a statement that could be libel per se is “Administration of this medication is a risky and harmful way to treat trauma patients.” A writer can reduce the likelihood of inviting libel claims by drawing precise conclusions from fact: “This medication did not raise visual analogue scores or decrease pain scores in any of the subjects in the study; therefore, we do not recommend it for treatment of trauma patients with these symptoms.” An example of a statement that might be considered libelous on the basis of contextual circumstances is observing that “the primary author of the study protocol has a relationship with the manufacturer” after having stated that the protocol was biased in favor of the manufacturer’s product. The context of this statement implies that the author was biased because of his or her relationship with the manufacturer. Again, precision and facts are the best protection against libel claims. The statement could be rewritten in the following way: “The protocol was biased because the design, a dose-response escalation, favored the sponsor drug over the less expensive competitor.” There are several key defenses against a libel lawsuit. The primary defense is truth of the factual statements or facts supporting a published opinion. Often, however, the truth is unclear and a jury may be asked to decide what is true. Second, some statements are protected by a privilege, which protects some statements from libel liability because the speaker was compelled to speak by virtue of a subpoena or for the advancement of the greater public good. The privilege applies to statements made in crafting legislation (absolute privilege) or to circumstances in which the statement is not malicious and the Volume , . : March
Libel and the Law statement was made in the course of a legal, moral, or social duty (qualified privilege). A physician reporting domestic abuse and violence is an example of qualified privilege. In medical publishing, where facts are unequivocal, qualified privilege is provided to an author who writes an essay critical of medical procedures or decisionmaking, provided there is absence of malice. A third defense against libel accusation is fair comment, a common-law privilege to criticize and comment on matters of public interest without being liable for defamation, provided that the comment is an honest expression of opinion and free of malice.9,10 Scientific publications generally comprise expressions of opinion based on scientifically discovered fact, so this defense can serve their authors well when they are confronted with a libel suit. Libel actions against opinions such as occur in scientific publications are generally actionable only if the opinion “implies the allegation of undisclosed defamatory facts as the basis for the opinion.”11 If a defendant can show that his factual statement or the facts on which his opinion is based are true, then he is not committing libel. This defense differs from the defense of truth because it protects potentially false opinions so long as they are based on ascertainable facts. A hypothetical example shows how this defense works: A scientist runs tests of a corporation’s medical device to test its efficacy. Hard data show that the device malfunctions on each test. The scientist can form an opinion based on fact and say, “I believe that the device will not serve as a tool for helping patients.” This opinion is protected by fair comment because it is based on accurate facts. If the same scientist examined the same data and said, “I believe that the company is run by thieves and scoundrels,” this opinion would not be protected, because the scientist has no factual examples to support this damaging statement. By understanding these legal concepts scientists and journalists can minimize the risk that they will make defamatory statements and maximize the chance that any potentially defamatory statements are protected by a privilege or defense. It is also crucial for them to be familiar with instances of libel litigation so that they can appreciate the risks of publishing and the potential costs associated with potentially defamatory speech. Unfortunately, there are often significant economic and power imbalances between scientists and writers and those who make accusations of libel, and as a result libel litigation can have high costs for the community of scientific journalism. The nuances to the litigation are endless and the wealthy corporations have greater odds of achieving their goal of stifling speech against their interests (even with no finding of liability) because they have the resources to fund a protracted suit and wear down the writers. Defendant authors may petition their insurance carriers to cover legal expenses, but depending on the purpose of the article, they may not be protected, particularly if the defendant is publishing in a capacity outside what could be considered his or her academic or professional scope. Annals of Emergency Medicine 355
Libel and the Law Two notable examples show how even baseless libel accusations can lead to lengthy, expensive lawsuits. The first occurred in 1969 and involved the case of a dentist who sued the British Medical Journal (BMJ) and the British Medical Association, the owners of the BMJ.12 The dentist claimed libel because the BMJ published an article critical of an anesthetic technique using methohexitone that was closely associated with his name. Litigation lasted 3 years, and when the case finally went to trial, the BMJ published weekly summaries of the courtroom activities. The case was settled in 1972 when both parties agreed to a statement acknowledging shared concern but no admission of libel.10,13 The British Medical Association spent nearly a quarter of a million pounds (equal to US $600,000 in 1972) defending the case.10 In 1982, the BMJ, in conjunction with the British Broadcasting Corporation, spent £10,000 collecting data and checking facts before publication of another article, but they were still sued for libel and spent £107,000 in a successful defense of that case.10 A second example of a baseless but costly libel lawsuit occurred when the Journal of Medical Primatology published a letter critical of Immuno AG, an Austrian biotech company, written by Shirley McGreal, PhD, the chairperson of the International Primate Protection League in 1983.14,15 Immuno AG sued Dr. McGreal, and Dr. Moor-Jankowski, the editor of the Journal of Medical Primatology, who was performing editorial duties as an uncompensated academic activity.16 Dr. Moor-Jankowski was forced to give costly depositions in Vienna and Sierra Leone and spend two million dollars in his defense, including $70,000 out of his own private assets.17 Dr. McGreal’s insurer spent $250,000 in her defense, and only then settled with Immuno for $100,000.18 In 1989, after nearly 7 years of litigation, the Appellate Division of the Supreme Court of New York concluded that the libel suit was not actionable and the case was thrown out. The Appellate Court decision was upheld in 1991.18 Despite the absence of libel, the physicians involved were forced to give up valuable time and energy and substantial amounts of money defending themselves. Dr. MoorJankowski wrote in a letter to the New York Times, “The court victory may still not effectively protect me or other editors of small professional journals from the chilling effects of suits by wealthy corporations using our legal system to discourage criticism of their activities.”18,19 Threats of libel litigation pose an even greater danger to the scientific community: they can have a long-lasting chilling effect on editorial policy. Using the threat of libel litigation, wealthy companies can prevent important research from being published and can force journals to disclose private information about their selection and publication processes. This stifling of academic discourse interferes with the process of peer review that is essential for scientific and medical progress. There are several recent examples of how libel accusations can block journals from publishing scientists’ work. In 1983, Ned Feder and Walter Stewart, 2 staff members at the National 356 Annals of Emergency Medicine
O’Malley et al Institutes of Health, performed an analysis of the body of work of John C. Darsee, describing and summarizing Darsee’s numerous examples of fraud. The article that Feder and Stewart wrote was critical of Darsee’s coauthors and of the editors of the scientific journals in which Darsee’s work was published, questioning the care with which the coauthors and editors discharged their responsibilities. They submitted the article to Nature and shortly afterward, several of Darsee’s coauthors informed the editors through their attorneys that publication of the research would be unwarrantably damaging to them.20 The editors of Nature agreed and recommended editorial changes that Feder and Stewart found unacceptable. The authors withdrew the article and submitted it to a number of other journals, but in each case, concern for potential libel litigation prevented the journal editors from publishing the article without significant changes. Nature ultimately published an edited version of the article.21 Feder and Stewart believe that the threat of libel prevented their work from being published in its original form and in 1986 they testified accordingly at the Subcommittee on Civil and Constitutional Rights of the US House of Representatives Judiciary Committee.1 Dr. Stanton Glantz was also hurt by negative publication bias caused by threats of libel lawsuits when he tried to publish his book The Cigarette Papers, an analysis of internal tobacco industry documents.22 After publication of the documents in 5 separate articles in the Journal of the American Medical Association (JAMA) in 1995,23 numerous publishers refused the book and turned Dr. Glantz and his coauthors away because of lawsuit threats.17,24 University of California Press finally published the book in 1996. Dr. Glantz described the decision by the editors of JAMA to publish the original series of tobacco articles as “courageous.”22 Using threats of libel litigation, companies have begun to demand access to the independent processes that journals use to select and publish pieces. Recently, in May 2007, lawyers representing Pfizer issued a subpoena to several medical journals requesting all documents about the decision to accept or reject articles, copies of rejected articles, the identities of peer reviewers and the articles they reviewed, and the comments by and among peer reviewers and editors about articles, revisions, and publication decisions.25,26 On January 17, 2008, JAMA and Archives of Internal Medicine were served with a Motion to Compel production of confidential editorial judgments, unpublished articles, and unpublished peer review comments. The editors of JAMA and the Archives of Internal Medicine fought the motion, and on March 14, 2008, the court denied the motion.26 In 2001, the journal Occupational and Environmental Medicine surrendered confidential peer-review comments to comply with a subpoena and has not reported difficulty in recruiting reviewers.25 The editors at JAMA and Archives of Internal Medicine fought the subpoena and Motion to Compel because they believed that if medical and scientific journals are routinely forced to turn over confidential peer Volume , . : March
O’Malley et al review and editorial commentary, there could be a profound effect on medical publishing.26 If scientists are identified and are forced to defend their peer review in public court proceedings, there might be a reduction in the willingness of individuals to perform peer review and editorial duties. The prospect of libel litigation may serve a legitimate purpose by requiring researchers to take sober pause before communicating matters that may adversely affect a product’s or corporation’s or individual’s professional reputation. Libel litigation (or threat of litigation) should not be abused to intimidate, harass, or deter scientists from publishing critical yet dissenting material in the scientific literature. Authors and editors can use the peer review process to avoid defamation suits because peer reviewers will screen out articles that may be motivated by libel as opposed to scientific or informational purposes. Unfortunately, the peerreview process is unlikely to deter litigation that is being used to silence scientists, and can sometimes drag more individuals into the lawsuit. In November 2004, 5 individuals who performed peer review on a book about industrial pollution for the University of California Press were subpoenaed by lawyers for the chemical industry in a civil case in US District Court in Mississippi.27 In all likelihood, threats of libel will not go away because they can be very effective. Scientific writers should be familiar with what constitutes libel, study the examples illustrated in this article, and exercise due diligence to minimize or avoid it when preparing articles intended for publication and communication. To avoid making libelous statements, authors need to write their conclusions carefully, based strictly on their results, and should clearly identify and separate opinion from fact. The authors would like to thank Cecile Zwiebach for assistance in the publication of this manuscript. Supervising editor: Michael L. Callaham, MD Funding and support: By Annals policy, all authors are required to disclose any and all commercial, financial, and other relationships in any way related to the subject of this article that might create any potential conflict of interest. The authors have stated that no such relationships exist. See the Manuscript Submission Agreement in this issue for examples of specific conflicts covered by this statement. Publication dates: Received for publication November 15, 2007. Revisions received April 4, 2008, and August 1, 2008. Accepted for publication August 8, 2008. Available online September 23, 2008. Reprints not available from the authors. Address for correspondence: Gerald F. O’Malley, DO, Department of Emergency Medicine, Albert Einstein Medical
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Libel and the Law Center, 5501 Old York Road, Philadelphia, PA 19141; 215456-5838, fax 215-456-8502; E-mail [email protected]. REFERENCES 1. Beardsley T. Do libel risks prevent publication? Nature. 1986; 320:6. 2. McLean AE. Libel actions against journals. Lancet. 1991;338: 123. 3. LaFollette MC. On the horizon. In: Stealing Into Print: Fraud, Plagiarism and Misconduct in Scientific Publishing. London, England: University of California Press Ltd; 1996:200. 4. O’Malley GF. Non-invasive carbon monoxide measurement is not accurate. Ann Emerg Med. 2006;48:477-478. 5. Dobbs DW. Defamation. In: The Law of Torts: The Hornbook Series. Part IV: Economic and Dignitary Injury. St. Paul, MN: West Group; 2000. 6. Stubbs SE, Boyce WJ. The risks of libel in medical publishing. Ann Allerg. 1994;72:101-103. 7. Rozovsky LE, Rozofsky FA. Avoid libel suits by knowing the legal limits of defamation. Can Doct. 1983;49:58-59. 8. Restatement 2d Torts 568 The American Law Institute (1977). 9. Parsons D. The dangers of libel and how to avoid them. BMJ. 1993;306:253-255. 10. Smith R. Libel and medical journals: proper constraint or against the public interest? In: The Trouble With Medical Journals. London, England: Royal Society of Medicine Press Ltd; 2007. 11. Restatement 2d Torts 566 The American Law Institute (1977). 12. Anonymous. Libel and medicine [editorial]. Br Med J. 1985;290: 1302. 13. Anonymous. Martin Ware [obituary]. Br Med J. 1998;317:1323. 14. McGreal S. A project with potential to spread non-A, non-B hepatitis in West Africa. J Med Primatol. 1983;12:280-282. 15. Fersko R. Responsible exchange of ideas and libel law. J Natl Cancer Inst. 1992;84:450-451. 16. Immuno V. Moor-Jankowski, Appellate Division, Supreme Court, First Judicial Department in the County of New York, January 17, 1989. 17. Kuehn RR. Suppression of environmental science. Am J Law Med. 2004;30:333-369. 18. Brahams D. Libel suit over letter to the editor. Lancet. 1991;337: 1403-1404. 19. Moor-Jankowski. New York Times. January 25, 1991; Opinion section:C. 20. Anonymous. Fraud, libel and the literature [opinion]. Nature. 1987;325:181-182. 21. Stewart W, Feder N. The integrity of the scientific literature. Nature. 1987;25:207-214. 22. Glantz SA, Slade J, Bero LA, et al, eds. The Cigarette Papers. Berkeley, CA: University of California Press; 1996. 23. Glantz SA, Barnes DE, Bero L, et al. Looking through a keyhole at the tobacco industry. The Brown and Williamson documents. JAMA. 1995;274:219-224. 24. Weiner J. The cigarette papers. Nation. January 1, 1996:11-18. 25. Guterman L. Journals resist a drug company’s subpoenas, citing the threat to peer review. Chronicle of Higher Education. Available at: http://chronicle.com/daily/2008/03/2286n.htm. Accessed August 1, 2008. 26. DeAngelis CD, Thornton JP. Preserving confidentiality in the peer review process. JAMA. 2008;299:1956. 27. Guterman L. Peer reviewers are subpoenaed in cancer lawsuit against chemical companies. Chronicle of Higher Education. Available at: http://chronicle.com/weekly/v51/i13/13a.02001. htm. Accessed August 1, 2008.
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