PubPeer wins appeal of court ruling to unmask commenters

PubPeer is having a good day.

In a new ruling, a trio of judges on the Michigan Court of Appeals reversed a 2015 decision mandating the site reveal the identity of anonymous commenters after a scientist sued them, claiming they cost him a job offer.

The judges stated that Fazlul Sarkar, the scientist suing the commenters, can continue pursuing a defamation case, but:

…we hold that Dr. Sarkar is not entitled to unmask the identities of any speakers on pubpeer.com with respect to those claims due to the anonymity protections afforded by the First Amendment.

Alex Abdo, a senior staff attorney in the Speech, Privacy, and Technology Project of the American Civil Liberties Union, which represents PubPeer, said in a statement:

This ruling is a critical victory for freedom of speech and scientific inquiry. Anonymity has a storied history in our country, allowing the nation’s founders to express unpopular views in relative safety. Anonymity is no less important today. Scientists who anonymously review the work of their peers should not have to fear retribution for exposing the anomalies they find, and the court rightly agreed. Without the breathing space that anonymity provides, free speech and scientific inquiry would suffer.

During the case, PubPeer earned the support of some heavy-hitters, including Twitter and Google.

Brandon Stell, a co-founder of PubPeer, also released a statement:

We created PubPeer because we believe that science will progress most quickly and surely if published research can be discussed, questioned, and, yes, even criticized, without fear of legal threat or retribution. Scientists always have the option to respond to the comments on our site by disclosing and defending their original data. They need not resort to suppressing criticism by legal means. We are delighted and deeply grateful that the court agreed that our users should not be unmasked and exposed to legal threats merely for debating the merit of public research. The message to all scientists is clear: show your data.

You can read the entire decision here. The decision describes a flyer that was distributed to personnel at Wayne State University, where Sarkar is based, which contained a screenshot from PubPeer. The flyer was distributed after Sarkar lost a job offer at the University of Mississippi, and rescinded his resignation from Wayne State. The ruling states:

While Dr. Sarkar asks that we assume that the flyer was likely distributed by someone who criticized his research on pubpeer.com and therefore unmask the identities of all the individuals who have commented on his research on that website, we simply cannot do so. In short and as indicated above, individuals are entitled to make anonymous statements under the First Amendment, and the mere fact that someone later prints some of those anonymous statements and distributes them does not suddenly destroy that protection. Accordingly, we conclude that, while Dr. Sarkar’s defamation claim may nevertheless proceed, he is not entitled to discovery from PubPeer in this regard.

Nick Roumel, the attorney representing Sarkar, declined to comment.

For more background on the case, check out our timeline.

Most recently, the courts denied the ACLU’s motion to include into evidence an investigative report by Wayne State University, which concluded that Sarkar had engaged in widespread misconduct, and he should retract more than 40 papers. Sarkar has already retracted 18 papers.

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