An attorney for Fazlul Sarkar, the Wayne State University researcher who claims he lost a job offer because of comments about his research on PubPeer, has asked a judge to reconsider last month’s decision not to release information about the site’s anonymous commenters. As a consequence, the brief in support of that motion identifies a key commenter as the pseudonymous Clare Francis.
On March 19, a Michigan court ruled that PubPeer had to disclose identifying information about a single commenter, who left the second of these comments:
(June 18th, 2014 4:51pm UTC)
Has anybody reported this to the institute?
(June 18th, 2014 5:43pm UTC)
Yes, in September and October 2013 the president of Wayne State University was informed several times.
The Secretary to the Board of Governors, who is also Senior Executive Assistant to the President Wayne State University, wrote back on the 11th of November 2013: “Thank you for your e-mail, which I have forwarded to the appropriate individual within Wayne State University. As you are aware, scientific misconduct investigations are by their nature confidential, and Wayne would not be able to comment on whether an inquiry into your allegations is under way, or if so, what its status might be.
“Thank you for bringing this matter to our attention”
PubPeer has since filed a motion to stay enforcement of that decision, and has requested an appeal, as has Sarkar. But in a supplemental brief filed on Friday, April 9, Sarkar attorney Nicholas Roumel reveals that Wayne State provided the email exchanges quoted in the comment in question, and that they were between the pseudonymous Clare Francis and Julie H. Miller, secretary to Wayne State’s Board of Governors. Roumel quotes from a November 10, 2013 email from Francis:
“I am writing to you about multiple scientific concerns about the published work of Fazlul H Sarkar which have been aired on Pubpeer.
“You can find the entries on Pubpeer here: …
“Many of the entries mention things which amount to what many think of as scientific misconduct….”
Part of PubPeer’s argument has been that there is no grounds for a defamation suit against the commenter, because the comments do not contain libel. The emails, Roumel argues in the filing, mean that:
Simply put, PubPeer is dead wrong. They have argued repeatedly that there is no way any of the pleaded statements are capable of defamatory meaning – i.e., accusing Dr. Sarkar of intentional research misconduct. On the contrary – even the anonymous poster and emailer was astute enough to know that “Many of the entries mention things which amount to what many think of as scientific misconduct….” This supports Dr. Sarkar’s argument all along that in the scientific community, people reading on PubPeer would be fully aware that he was being accused of intentional research misconduct – a serious charge and accusation of illegal acts – rather than simply stating their opinion that certain images resembled each other.
Francis tells Retraction Watch that a lawyer from the American Civil Liberties Union (ACLU), which represents PubPeer, has asked if he or she wanted help protecting his or her anonymity. Roumel has previously said that he and Sarkar would be fine with an order that protects the name of the commenter.
Francis also said:
My comments to Wayne State are pointing out the obvious. They are in the public interest (throughout the world).
Roumel tells us that Wayne State did not object to the subpoena for the email exchange. We found that puzzling, since our understanding is that federal regulations require keeping the identities of complainants confidential. Roumel agreed that was true, but said:
…they did not release (nor did I ask for) any documents having to do with any alleged actual, formal complaints…
It’s not clear to us that confidentiality is only required for formal complaints, but this is of course a legal question others will decide. The information from Wayne State does not include Francis’s IP address, which the judge ruled PubPeer must provide to Roumel.
We have reached out to Wayne State and an attorney for PubPeer, and will update if they respond.
Update, 10 a.m. Eastern, 4/14/15: PubPeer’s attorneys responded:
We are deeply troubled that a scientist who exercised his or her right to anonymously report anomalies in scientific research is being threatened with possible liability. The First Amendment protects the right to speak anonymously precisely so that, in circumstances like this one, individuals can report on matters of public interest without fear of retribution. This case is especially troubling because it threatens to weaken the foundation of scientific research, which relies on honest feedback and criticism from one’s peers.
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