PubPeer has suffered a setback in an ongoing lawsuit filed by a scientist who alleges the site’s anonymous commenters cost him a job.
This week, judges in the Court of Appeals in Michigan denied the request of the American Civil Liberties Union — which is representing PubPeer — to include an investigative report as part of evidence in the case. The report, by Wayne State University, found the plaintiff — Fazlul Sarkar — had committed widespread misconduct, and should retract scores of papers.
Alexander Abdo of the ACLU told us:
With or without the report, the record in the case highlights why it is critical to require defamation plaintiffs like Dr. Sarkar to substantiate their claims with evidence before unmasking their critics. We remain hopeful that the Michigan courts will agree.
Nick Roumel, who is representing Sarkar, had a different perspective:
It was our position all along that it was unlawful to attempt to introduce the investigation results into the appellate record. Appeals, as a rule, are decided on the record developed in the trial court; and in this case, the trial court did not have any evidence regarding the investigation.
PubPeer’s attempt to introduce the investigation results, in my opinion, was an improper attempt to influence the Court of Appeals panel. The best analogy I can think of is, for example in a criminal case, “What does it matter if the defendant got a fair trial? He was guilty anyway!” Certainly if this case ever makes it back to the trial court, the investigation results will be relevant. But the point of this appeal is strictly to determine the standards to be used by the trial court for cases of this type, when faced with subpoenas against anonymous persons. Not whether Dr. Sarkar is “guilty” or not.
As it stands, PubPeer has appealed a ruling in March, 2015, in which a judge ordered the site to unmask one anonymous commenter. The latest decision means the Court of Appeals will make its decision without considering the results of the investigation.
The decision from the court of appeals, Roumel told us,
could be tomorrow or next year…
For more information, check out our timeline about the case.
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How soon before freedom of information demands for peer-reviewers identity.
Wait, so the judge allowed a news story about the investigative report to be admitted as a supplemental brief, but not the investigative report itself? What kind of sense does that make?
The ACLU brief to introduce the investigation report revealed that the institution had inititated a miscconduct investigation well in advance of the appearance of the first PubPeer comments . . . as well all communications to the other institution about the troubled figures. Thus the underlying merit of the defammation claim against PubPeer is perplexing when the basis of the comments was already known to be factual. Is the root of this more an issue of confidentiality?
RW should upgrade its timeline to reflect these events.