Sarkar vs. John Doe: What happened at this week’s hearing involving PubPeer

On Tuesday, lawyers representing both sides of the ongoing suit filed by a scientist against PubPeer commenters appeared in court, alleging their criticisms of his work cost him a new job at the University of Mississippi.

In the case described as “FAZLUL SARKAR V JOHN DOE,” lawyers representing PubPeer, Sarkar, and the anonymous commenter at the heart of the case spoke before two judges (one was absent). As the case now stands, a judge has ruled that all but one of the commenters can remain anonymous, and PubPeer has filed an appeal, earning the support of the American Civil Liberties Union (ACLU), as well as Google and Twitter.

According to one of the attorneys representing PubPeer, Alex Abdo at the ACLU, things proceeded as expected. Their main argument, he said, was:

Anonymity exists for a reason in this country, and requires Constitutional protection.

Furthermore, Sarkar’s insistence that the site unmask the identity of one commenter doesn’t meet the “minimum threshold required” to take such a drastic step, Abdo added.

He noted that most of the discussion in the courtroom was about whether comments on the site could be considered defamatory; he argued they were part of a “core scientific discussion.”

The anonymous commenter in question — pseudonymous whistleblower Clare Francis — was represented by attorney Bill Burdett, who also spoke at the hearing. We contacted Burdett, who told us:

My client has asked me not to discuss this case outside of court.  I’m obliged to follow my client’s instructions.

As we reported last week, some judges ask few questions during these hearings, making it hard to tell which way they are leaning. On Tuesday, one of the judges was “very active, very engaged,” said Abdo, but added it’s hard to know what that could mean for the final verdict.

I think it’s fair to say she had tough questions for both sides. I don’t have a sense of what the outcome will be.

Nick Roumel, the attorney representing Sarkar, also told us he couldn’t predict which way the judges would rule:

I’m really not going to speculate, but I think it went well. It was well argued by both sides, the judges were well prepared, and recognized the importance of the case.

The verdict could come as soon as a few weeks from now, Abdo added.

We’re hopeful that PubPeer will prevail. And if not in this court, we’ll go to the Michigan Supreme Court. But one step at a time.

Sarkar has logged 18 retractions, many of which cite an institutional investigation at Wayne State University.

The Scientist spoke with PubPeer co-founder Brandon Stell after the hearing:

After the session closed, he told The Scientist that the site’s insistence that anonymous comments be based on publicly verifiable facts protects it from hosting defamatory statements. “If all arguments are based on publicly verifiable information, if somebody is grinding an ax when they’re making an argument, we don’t really care,” he said. “As long as it’s a solid, publicly verifiable argument, it doesn’t matter what the motivation was for leaving that comment. If there’s ax-grinding, I don’t see it as a huge problem as long as we enforce the publicly verifiable information criteria.”

Stell told us:

I was able to see the brilliance of Alex and the others at the ACLU in person yesterday and our users are extremely fortunate to have them on their side!

Roumel agreed with Abdo that this case will likely continue for some time, regardless of the ruling from Tuesday’s hearing, given how strongly each side feels.

Honestly, this is a case that might even make the U.S. Supreme Court.

For more information, check out our timeline on this case.

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