Retraction Watch

Tracking retractions as a window into the scientific process

Lawsuit against publisher over retraction comes a step closer to reality

with 6 comments

De GruyterAn author has begun the process of taking legal action against a publisher for retracting his paper.

As we reported last month, John Bishop, the CEO of an independent media company called Crocels, based in Pontypridd, Wales, argues that by taking down his paper, De Gruyter defamed him and breached a contract — their agreement to publish his paper. Now, Bishop has sent the publisher what’s known in the UK as a “letter of claim.”

In the letter, Bishop writes:

In accordance with the civil procedure rules in the United Kingdom I am notifying you under the pre-action protocol that I am likely to have to take legal action against you under the E-Commerce Directive for breach of statutory duty and under the law of contract for breach of contract.

You can read the whole letter of claim here, which is addressed to Alex Greene, the Senior Editorial Director at De Gruyter. Greene told Bishop in an email last month that had the paper “been read critically, the article would not been accepted for publication.”

In the letter, Bishop writes:

I cannot be held responsible for your internal procedures failing – you agreed to publish my work and therefore have no right to back out of that agreement.

He argues that the retraction notice defames him:

On Google Scholar in particular, when people see the citation for the original work they see the derivative with the words “Reaction of” and in all other academic paper databases people see the derivative among all my other research papers, furthering the defamation of me.

He outlines his planned course of action:

This letter is to notify you that if within the next 14 days that you do not adhere to our contract that my work be published on your website and other avenues and you do not cease publication of the derivative work and withdraw it from all academic database where you have associated with my name then I will have no alternative but to take legal action in the civil courts of the United Kingdom including by making use of the E-Commerce Directive and the Services Directive, which apply to De Gruyter as a German-based company.

Per UK legal protocol, De Gruyter is obliged to respond now, and either accept the claim, provide more information, or reject the claim.

As we reported in an update on an earlier post, Greene told Bishop via email:

If, somehow, you succeed in court in compelling us to re-instate the article, we would do so and publish a full Publisher Note together with an annotated version of the article so our readers understand what the problems are with the article. We don’t think that will serve either of us well.

Reached for comment today, De Gruyter repeated what they have said previously, that they will “not have any out of court comments.”

This wouldn’t be the first time a researcher has sued a publisher over a retraction. Mario Saad lost his case last year against the American Diabetes Association, but an author earned an apology and $10,000 in legal fees when he sued Elsevier in 2011.

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Comments
  • Narad June 1, 2016 at 7:21 pm

    I just took a glance at the original paper (eighteen sections?), and the one useful thing that came out of it was finding that the original WORLDCOMP guy is still at it and apparently upset that Jeffrey Beall has not given him his due.

  • Neuroskeptic June 2, 2016 at 7:17 am

    I find this a very troubling case. The publisher *did* publish Bishop’s paper, in accordance with the agreement. They are now proposing to retract it, but this doesn’t change the fact that they published it, just as they contracted to do.

  • Frederick Guy June 2, 2016 at 7:53 am

    Even if the paper is complete gibberish, the publisher should not be allowed to retract unless the author is shown to have violated the contractual terms – for instance, by misrepresenting the author’s research in a way that could not have been obvious from reading the paper, or by plagiarizing. Bishop is surely correct that for a journal to withdraw published work causes harm to the author, harm that would never had occurred had the journal not agreed to publish in the first place: the systems of indexing, citation, and retraction (with explicit notices of retraction) ensure that nothing just goes away quietly. This systematic record is, on the whole, a good feature of academic publishing and it visits on the publisher some responsibilities: they should not be allowed to harm authors just because they notice that they have made fools of themselves by publishing something stupid.

    • Neuroskeptic June 2, 2016 at 8:04 am

      I disagree. It is fundamental to academic freedom that journals are able to publish (or not publish, or publish and then retract) what they like, so long as in doing so they operate within the law and do not publish illegal materials etc. If a journal is not free to publish retraction notices, what else might it not be free to publish? This is a slippery slope.

  • Tero Kivela June 2, 2016 at 8:57 am

    It is obvious that the peer review failed spectacularly. In cases like this, the publisher should of course check with the reviewers that the process was not rigged; we have seen so many examples of that on RW.

    The second thing that strikes me as odd is that the retraction apparently was not discussed with the author in advance whereas retraction rather typically are “in agreement with the author, editor and publisher”, indicating such contact.

    Regarding freedom to publish, would an expression of concern fulfilled the same purpose without breaching the contract (which is exactly what the publisher plans to retreat to). The only difference being they woul them had to publish their own failing which the retraction avenue may downplay.

  • Anonymous June 2, 2016 at 11:33 am

    I agree with Neuroskeptic that the publisher can do anything it wants. But I also agree that the publisher, in this case, looks really stupid for accepting something it later (for some undisclosed reason) was not pleased to having published. This is not a slippery slope. It is an interesting case to test whether individuals have the right to challenge the editorial incompetence of large corporate and powerful publishers in a court of law. As I see it, even if Bishop loses in court, he has won in the public battle by exposing DeGruyter’s flip-flopping.

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