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.