Policy Forum How Can Journals Respond to Threats of Libel Litigation?

Nav Persaud1,2,3, Thom Ringer1, Trudo Lemmens4,5* 1 Keenan Research Centre in the Li Ka Shing Knowledge Institute, St Michael’s Hospital, Toronto, Ontario, Canada, 2 Department of Family and Community Medicine, University of Toronto, Toronto, Ontario, Canada, 3 Department of Family and Community Medicine, St Michael’s Hospital, Toronto, Ontario, Canada, 4 Faculty of Law, University of Toronto, Toronto, Ontario, Canada, 5 Joint Centre for Bioethics, University of Toronto, Toronto, Ontario, Canada

Introduction Summary Points Editorial independence is critical if medical journals will continue to be N The mere suggestion of litigation can bias the medical literature by affecting venues for important debates that affect editorial decisions. patient care. Editorial independence in- N Journals and authors should publicly post threats of litigation or cease and cludes the latitude to accept or reject desist letters. manuscripts on the basis of their content N There are some international legal precedents for publicly posting litigation and without fear of repercussions against threats. the journal. That independence is dimin- N Posting of litigation threats has some advantages over commonly employed ished when concerns about libel lawsuits strategies for guarding against libel chill, such as legal consultations and deter journals from publishing contentious litigation insurance. manuscripts. The Supreme Court of Canada has described this phenomenon of ‘‘libel chill’’ as follows: ‘‘There is Promote International Cooperation ported rejecting papers that were ‘clearly concern that matters of public interest go among Medical Journal Editors opined libelous’ or removing material that might unreported because publishers fear the that ‘‘[e]ditorial freedom is, first and have attracted libel action,’’ though ‘‘they ballooning cost and disruption of defend- foremost, a freedom from a number of insisted that this had been done on ing a defamation action. … When contro- threats,’’ and that ‘‘[t]hreat of lawsuits editorial grounds’’ [3]. American Psycho- versies erupt, statements of claim often against journals and editors seems to be an logical Association publisher Gary Van- follow as night follows day, not only in increasingly relevant and chilling factor in denBos estimated that he dealt with serious claims … but in actions launched some countries’’ [2]. Since then, little has ‘‘about 20 to 30 threats of lawsuits related simply for the purpose of intimidation. Of been done to counter libel threat, and to manuscripts in prepublication status’’ in course ‘chilling’ false and defamatory there are indications it continues to be a 25 years [3]. In 2001, the editor of the New speech is not a bad thing in itself, but serious concern, perhaps even more so in Zealand Medical Journal left a blank space in chilling debate on matters of legitimate the context of the multiple controversies an article with the note: ‘‘the paragraph public interest raises issues of in- surrounding the safety and efficacy of was withdrawn for legal reasons’’ [4]. Two appropriate censorship and self-censor- health care products, which are often of the authors of this article have been ship’’ [1]. Here, we explain why this ‘‘libel aggressively promoted by companies that confronted with either editorial decisions chill’’ effect is currently insufficiently have the financial means to start legal not to publish an article on a controversial countered with legal consultations and action. The journal Science’s informal 2010 topic or with removal of sections of an litigation insurance. We suggest that in survey of 22 leading scientific and medical article just prior to publication because of the absence of significant reform of libel journals found that several journals ‘‘re- the editors’ fear for legal liability. law, which is beyond the scope of this paper, medical journals post threats of litigation; and we discuss some legal Citation: Persaud N, Ringer T, Lemmens T (2014) How Can Journals Respond to Threats of Libel implications of doing so. Litigation? PLoS Med 11(3): e1001615. doi:10.1371/journal.pmed.1001615 Published March 25, 2014 When Can Threats of Libel Copyright: ß 2014 Persaud et al. This is an open-access article distributed under the terms of the Creative Affect the Publication Process Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. It is difficult to determine how often Funding: NP was supported by a Banting Postdoctoral Fellowship from the Canadian Institutes of Health concerns about litigation prevent manu- Research. TL is supported by a grant of the Canadian Social Sciences and Humanities Research Council scripts from being published or impact (‘‘Promoting Integrity in Medical Research: the Janus Face of Regulation’’). No funding bodies had any role in the analysis, decision to publish, or preparation of the manuscript. significantly on the content of manuscripts. In 1995, a Report of the Conference to Competing Interests: NP is an Associate Editor for the Canadian Medical Association Journal. Two of the authors (NP and TL) have been faced with editorial decisions that resulted either in a rejection of an article on the basis of concerns about potential litigation following an earlier acceptance decision (NP), or in a request for revision based on concerns about litigation (NP/TL), or removal of a section of an article prior to publication The Policy Forum allows health policy makers and without permission of author (TL). TR was an employee of Infrastructure Ontario, an agency of the Province around the world to discuss challenges and of Ontario, Canada, when this article was conceived and written. opportunities for improving health care in their societies. * E-mail: [email protected] Provenance: Not commissioned; externally peer reviewed.

PLOS Medicine | www.plosmedicine.org 1 March 2014 | Volume 11 | Issue 3 | e1001615 It is plausible that parties with large threats. While there are differences in how editors’’ to ‘‘champion freedom of expression’’ sums of money to gain or lose based on the lawyers approach these threats, one rea- [7]. content of a medical journal article (e.g., sonable approach for lawyers consulted by This action can, of course, only work if pharmaceutical or device companies) may journals about manuscripts that can at- many journals actually facilitate publica- attempt to exert their influence over tract litigation is to err on the side of tion of these letters. The deterrent effect of editorial decisions with cease and desist caution. They tend to have a professional the practice depends on its widespread letters or threats of litigation. This behav- interest in avoiding future criticism that adoption such that parties contemplating ior can have a significant impact on could arise if a journal is taken to court intimidation tactics actively take it into editorial decisions, because of the power following their more lenient legal advice. consideration. Organizations such as the imbalance between a well-resourced and Cautionary advice, resulting in rejection of International Committee on Medical Jour- keenly motivated adversary and an often the manuscript, is perhaps more likely nal Editors (ICMJE), COPE, or the World under-resourced journal with more sub- when legal consultation is mandated by a Association of Medical Editors (WAME) missions than can be published. Smaller libel insurance policy. Decisions about could support this approach and promote journals may not be able to survive even publication may thus be affected by adherence by making it a condition of the mere litigation process because of legal opinions from lawyers who are unable to membership. These organizations could defense costs, as one of us was told by an comment on the scientific merit of the also offer certifications to non-affiliated editor when inquiring about the last manuscript and who think foremost about journals for their commitment to this minute pre-publication removal of a the insurance company’s interest in avoid- approach, while these journals could also paragraph from an article published in ing a lawsuit. explicitly identify it as an essential compo- the journal. While threats of lawsuits or nent of their editorial policy. Furthermore, subpoenas have been used to intimidate these organizations could take the lead in authors and even peer reviewers [5,6], A New Proposal to Expose Libel establishing and maintaining, with support editors and publishers may also be put Threats of their members, a special website under pressure; they may be reluctant to dedicated to this form of exposure of libel We recommend that journal editors publish controversial articles or editorials threats directed against medical journals. consider the option of publicly posting because of threats or fear of lawsuits even The advantage of the jointly organized litigation threats, e.g., cease and desist when authors are willing to take the risk. website would be the ease of access for letters or more subtle threats that are posting and for analyzing libel threats, the received either when a manuscript is being Current Responses increased visibility of the initiative, and the considered for publication or after it has sharing of maintenance costs and costs of A natural first response to a legal threat been published. initial legal consultations. is to consult a lawyer. Journal editors are The aim of this practice is deterrence and Threat letters can be posted without not generally professionally trained to deal accountability rather than retaliation. Post- comment on the merits of the threat with libel threats and even those with ing cease and desist or litigation threat and—where needed—with identifying in- formal training may not have experience letters will empower journals to publish formation redacted. Editors should discuss dealing with such threats. Obtaining such worthy manuscripts despite threats and threat letters and carefully assess how to advice can improve the quality of a discourage specious claims meant to intim- publicize the letters in a way that squares publication. As one scientific journal idate journals. The registry will expose such with editorial integrity and risk manage- publisher quoted in Science reported: ‘‘We threats to scrutiny by the public, the ment. Redaction of threatening letters to know that on occasion academics may government, and the press. Note that people remove identifying information about the make assertions they can’t then support; or organizations will still be able to protect authors and the type of publication that is the legal advice we obtain often helps themselves against unwarranted allegations, the target of a threat could be necessary if them to clarify their thinking and so we as posting threats of litigation should not the decision is made not to publish a end up with a better paper, as well as one deter parties with legitimate concerns about paper. The reason is that publicizing that should stand up in any court’’ [3]. being defamed from pursuing legal action. details about the rejected paper could Insurance may help journals defray the These should be able to publicly explain undermine the anonymous submission high cost of such legal advice. There are, without embarrassment why they are pur- and evaluation process of journals and however, two limitations to insurance suing legal action. In contrast, companies could compromise the submission of the schemes. The first is that insurance costs have an interest in avoiding exposure of paper to another journal. In that case, an generally scale with the insured’s per- their aggressive legal tactics if there is a weak editorial note could accompany the pub- ceived risk profile—in this case, its history basis for a threat. Making these threats lication of the letter, explaining in as much and likelihood of attracting legal challeng- transparent also promotes accountability of detail as possible the type of threat and the es. Journals publishing in controversial journal editors. A journal that refuses to nature of the publication. An editorial note areas or willing to take a stance may be publish an article after receiving a cease and could also identify why the journal ulti- more likely to incur higher insurance costs. desist or litigation threat letter can be mately rejected the paper, whether it is The second related problem is that pushed to explain its rationale. Posting because of the threat or for other editorial insurance companies often exercise con- threats promotes open discussion about or quality assessment reasons. Of course, trol over what approach to take when freedom of speech by bringing to light a journals should consult legal counsel both faced with legal action. They may insist on troubling aspect of research. It would, in our before adopting any publication policy, as compromise or settlement, even when view, be a way to live up to what the well as with respect to specific letters and editors wish to press ahead with publica- Committee on Publication Ethics (COPE), threats. tion. an advisory body with a membership of The specifics of a registry of threatening Even if legal advice is affordable it may over 8,000 journals, recognizes to be among letters requires further elaboration with not be helpful to curb the impact of libel the ‘‘[g]eneral responsibilities and duties of input of the editorial boards of leading

PLOS Medicine | www.plosmedicine.org 2 March 2014 | Volume 11 | Issue 3 | e1001615 medical journals. But it is worth pointing things, republished a letter by the teachers’ exchange between Public Citizen Litiga- out here that there are precedents for this association in which it threatened legal tion Group—the consumer organization approach. One existing registry with a action if they did not stop voicing their founded by Ralph Nader—and the com- comparable objective, but focusing on criticism in public, accompanied by the pany DirectBuy reflects how consumer internet postings and online publica- teachers’ responses to those letters. The organizations have confidently resisted tions—not on pharmaceutical and medical association challenged in particular public efforts to block republication of litigation publications—is ChillingEffects.org, a statements that referred to its tactics as threats by alleging copyright in the threat website maintained by a coalition of legal or institutional bullying aimed at letter. DirectBuy had sent letters to the American law school clinics and the curtailing freedom of speech. operator of several consumer complaint Electronic Frontier Foundation [8]. The While the court recognized that these sites, demanding that the operator remove site archives letters and notices from a accusations were ‘‘defamatory,’’ it ruled and cease making allegedly defamatory number of categories; as of May 9, 2013, that several of them were protected as claims. The letter concluded with a there were 104 notices or letters catego- ‘‘fair comment,’’ since the legal tactic of warning that the letter itself was copy- rized as involving alleged defamation [9]. the cease and desist letter could fairly be righted by the firm—the letter had been Google also publishes the copyright in- qualified as an attempt to ‘‘coerce a registered with the Copyright and Trade- fringement ‘‘takedown’’ notices it receives change in behaviour’’ [11]. ‘‘To the extent mark Office—and that unauthorized re- at ChillingEffects.org [8]. The founders of there is a defamatory sting in this publi- publication would result in additional legal ChillingEffects.org describe the important cation [of the cease and desist letter and claims. role their registry has played as a source of commentary]’’ the court ruled, ‘‘it is Media law scholar Sam Bayard at impartial data to inform public under- opinion based upon fact on the general Harvard University’s Berkman Center for standing of the copyright takedown pro- subject of education and the role of the Internet and Society concludes his discus- cess, as well as scholarly and policy debate [teachers’ association] in that system sion of the issue by stating: ‘‘Don’t be concerning the same [10]. [which] are matters of public interest’’ bullied by a lawyer threatening you with a [11]. Interestingly, the court emphasized copyright infringement suit [under Amer- Possible Risks of Publishing in its assessment of the fairness of one of ican law] for republishing the contents of a Libel Threats the statements the fact that it did not threatening letter. One way or another, elaborate on the merits of the dispute this is an extremely weak legal argument, Editors or those in charge of organiza- occasioning the tactic, but was merely and one that the lawyer is extraordinarily tions that would take on the task of focusing on the legal tactic itself. Accord- unlikely to pursue’’ [13]. ChillingEffect- developing websites posting libel threats ing to the court, ‘‘the conversation that ensued s.org similarly notes, ‘‘[i]t is highly unlikely should carefully explore with expert coun- … was fair comment on the contents of the cease that someone could sue successfully [under sel the legal consequences of publishing and desist letters. None of it was comment on American copyright law] for the posting of libel threat letters in all relevant jurisdic- any of the specific instances and events a cease-and-desist notice (most notices are tions, not just their own. Libel laws and that prompted issuance of those letters’’ minimally creative; the use is for purposes other sources of liability have long arms [our emphasis] [11]. By contrast, the court of commentary and research; the amount such that what is safe under the laws of found that other comments suggesting that used is necessary to the understanding; one jurisdiction may fall within the parents would feel threatened ‘‘for asking and there is no effect on a ‘market’ for extraterritorial reach of another. We questions about the education of their cease-and-desist letters)’’ [14]. realize that this means that initially only children’’ were misrepresenting the possi- There is also the possibility that attempts journals or organizations with significant ble consequences of the cease and desist to sue those who post litigation threats financial resources may feel comfortable to letters and were thus defamatory [11]. would actually result in greater public take the lead with this approach. Yet, The court found that a forceful opinion scrutiny of the larger issue of ‘‘libel chill’’ there are promising indications and prec- stating that plaintiffs’ letters ‘‘threatening and could result in changes to the law, just edents in some Common Law jurisdictions legal action’’ constituted an attempt to as high profile defamation cases in the that suggest it is a feasible approach that silence opponents was protected as fair United Kingdom led to changes in the law should not expose them to significant comment in part because it did not delve that now protect important scientific debate financial risks. We briefly discuss here into the content of the controversy. By that [15]. Moreover, the law and those applying selected examples from Canada and the same logic, republishing such letters with- it must recognize that public policy mili- United States as a discussion of implica- out any comment, and with private tates strongly against liability for republish- tions in all countries is beyond the scope of information redacted, would have been ing litigation threats. Years of media this article. even more defensible. Of course, Angle also coverage of the issue make it clear that In Canada, a 2006 case from Alberta, serves as a cautionary tale, for it makes the entire phenomenon of libel chill is Angle v. LaPierre [11], suggests that merely quite clear that exchanges that ensue from eminently a public interest issue; debate republishing a cease and desist letter that the publication of letters could attract about that topic is impoverished if people contains allegations of defamation without liability. Moreover, the Angle case is a cannot reveal specific instances of it. comment on the letter itself or the underlying issue lower court decision, and thus not binding is not by itself defamatory. on other courts. Yet it shows how the law Conclusion The Angle case dealt with a lengthy of defamation has been applied favourably series of disputes between individual by at least one Common Law court to Medical journals should explore the teachers and a teachers’ association. The shield the publication of litigation threats. option of bolstering their commitment to latter was suing the teachers for public In the Unites States, which for several editorial independence by publicly posting statements concerning the disputes made decades has had what some view as ‘‘the threats of litigation. Consultations with on a number of public fora, including a most speech protective substantive libel lawyers and litigation insurance may website. The teachers had, among other laws in the world,’’ [12] a recent legal reduce the likelihood of lawsuits but

PLOS Medicine | www.plosmedicine.org 3 March 2014 | Volume 11 | Issue 3 | e1001615 neither insulates editorial decisions from Author Contributions met: NP TR TL. Agree with manuscript results libel chill. While exposing litigation threats and conclusions: NP TR TL. Analyzed the data: NP TR TL. Wrote the first will not completely prevent them, it may draft of the manuscript: NP TR TL. Contrib- be a step towards exposing the problem, uted to the writing of the manuscript: NP TR increasing accountability, and fostering TL. ICMJE criteria for authorship read and new social, scholarly, and legal norms.

References 1. (2008) WIC Radio Ltd. v. Simpson [2008] 2 Supreme 7. Committee on Publication Ethics (2011) Code of 11. (2006) Angle v. LaPierre,2006ABQB198 Court Reports 420, 2008 Supreme Court of Conduct and Best Practices Guidelines for Journal (14 March 2006), overruled in part by Angle v. Canada 40, at para. 15. Editors. Available: http://publicationethics.org/ LaPierre, 2006 ABQB 380 (29 May 2006) 2. (1995) Report of the Conference to Promote files/Code%20of%20conduct%20for%20journal% (modifying judgment as to costs and pre-judg- International Cooperation among Medical Jour- 20editors_0.pdf. Accessed 15 January 2014. ment interest but not to liability), appeal dismissed, nal Editors; 13–17 March 1995; The Rockefeller 8. (2011) Perfect 10, Inc. v Google, Inc., No. 10- Angle v. LaPierre, 2008 ABCA 120 (28 March Foundation Bellagio Study and Conference 56316 (9th Cir Aug. 3, 2011), at p. 4. (describing 2008). Center, Bellagio, Italy, Background. Available: chillingeffects.org as ‘‘a nonprofit, educational 12. Nicholson MA (2000) McLibel: a case study in http://www.wame.org/the-bellagio-report/ project run jointly by the Electronic Frontier English defamation law. Wisconsin International report-of-the-bellagio-conference-background/. Foundation and various law schools, which posts Law Journal 18: 1–144, p. 9. Accessed 12 May 2013. such notices on the Internet.’’) 13. (2007) Citizen Media Law Project, Copyright 3. Wogan T (2010) A chilling effect? Science 328: 9. ChillingEffects.org, search for ‘‘topic area’’ = Misuse and Cease-and-Desist Letters.Available: 1348–1351. ‘‘Defamation.’’ Available: http://www.chillin http://www.citmedialaw.org/copyright-misuse- 4. Frizelle FA (2005) Lawyers and letters (editorial) geffects.org/search/cgi. Accessed 9 May 2013. and-cease-and-desist-letters. Accessed 15 January N.Z.J.M. 118: 1. 10. (2010) Perfect 10, Inc. v Google, Inc. Brief of 2014. 5. Poythress N, Petrila JP (2010) PCL-R psychopa- Amici Curiae Chilling Effects Clearinghouse 14. Chilling Effects. Frequently Asked Questions thy: threats to sue, peer review, and implications Leaders in Support of Appellee, No. 04-9484 About Chilling Effects. Available: http://www. for science and law. A commentary. International (C.D. Cal. Dec. 21, 2010). Available: https:// chillingeffects.org/faq.cgi. Accessed 9 May 2013. Journal of Forensic Mental Health 9: 3–10. www.eff.org/sites/default/files/filenode/Perfect10 6. Guterman L (2004) Peer reviewers are subpoe- 15. Cressey D (2013) England’s libel laws reformed in naed in cancer lawsuit against chemical compa- _v_Google/P10_Chilling_Effects_Amicus%20Brief. a victory for science campaigners. Nature. nies. Chronicle of Higher Education 51: 13. pdf. Accessed 15 November 2012. doi:10.1038/nature.2013.12874.

PLOS Medicine | www.plosmedicine.org 4 March 2014 | Volume 11 | Issue 3 | e1001615