Attorneys representing PubPeer in its defense against a subpoena by cancer researcher Fazlul Sarkar, of Wayne State University in Michigan, have submitted a motion to the Wayne County Circuit Court to quash the matter.
Sarkar’s work has appeared on the anonymized post-publication peer review site, and he isn’t happy about it. In October, he sued the site’s commenters, demanding that PubPeer release the names of his accusers. Sarkar, who has not been found to have committed research misconduct, claims he lost a lucrative job offer at the University of Mississippi as a result of the posts.
The motion — available here — argues that even if the claims of image irregularities levied against Sarkar by anonymous PubPeer posters are untrue, they don’t meet conventional standards of defamation:
The subpoena to PubPeer jeopardizes the anonymity essential to PubPeer’s mission. Because the First Amendment protects the right to speak anonymously, however, it requires that Dr. Sarkar make a preliminary showing of merit to his claims before he may unmask PubPeer’s commenters. This he cannot do for three reasons.
First, his complaint fails to plead defamation with the specificity required by law. Many of the allegedly defamatory comments are not reproduced in the complaint; many are reproduced in only unintelligibly paraphrased fragments, absent their necessary context; and those that are quoted in full are quoted without any identification of the portions asserted to be defamatory.
Second, even for those comments reproduced in the complaint, none is capable of defamatory meaning. They express opinions, sarcasm and hyperbole, or facts that, even if false, would not be defamatory. For example, many state that images used in Dr. Sarkar’s papers “look similar.” That sort of subjective assessment is not provably false and thus not actionable.
Finally, the balance of interests overwhelmingly favors maintaining the anonymity of PubPeer’s commenters. The comments at issue are part of the scientific exchange necessary to scientific scholarship and progress. Because academic discourse inevitably involves—and requires—a competition among peers, courts have been loath to impose liability on the often-heated exchanges that result. To safeguard the breathing space required by the First Amendment, they generally require academics unhappy with their critics to respond with data and debate rather than defamation suits. This Court should do the same.
But PubPeer’s lawyers have submitted testimony claiming that Sarkar’s figures do indeed look iffy. In an affidavit also filed today, John Krueger, a former investigator at the Office of Research Integrity (ORI), testified that he detected signs of irregularities in all of the image samples – chiefly Western blots — from Sarkar that he reviewed.
According to Krueger, in the “approximately 44 images extracted from 25 full figures”:
there was sufficient visual support—based on morphology (shape), location, orientation and relative intensity (darkness) of the features in question in the images—to conclude that the images or their components were not authentic (did not depict different experiments as they purported to) or that they contained other irregularities (such as inconsistent splicing of data).
Krueger concludes with the following, fairly strong, statement:
PubPeer’s counsel did not ask me to determine whether the fact that the images I examined are not authentic is evidence of research misconduct by someone involved in the preparation of the papers. To make such a determination one would need direct access to the original data, and a fact-finding process that would require a fuller review by the institution. Had I been presented with these images while still at ORI, I would have recommended that ORI refer the images to the host institution where the research was conducted for such an investigation. Based on my experience at ORI, and given the demonstrable credibility of the numerous issues identified by PubPeer, I believe it very likely that ORI would have made such a referral in this case.