Defense Against Libel
5.9.7 Defense Against Libel
In the United States, truth is a defense against claims of libel in most cases (see also 5.9, Defamation, Libel). Aside from consideration of truth of damaging statements, some jurisdictions also consider whether damaging statements were made with intent to harm.3§(5.09),4 As a result, editors should query authors about any statements that criticize or imply criticism of individuals or corporate entities and ask the authors to provide evidence or documentation to support such statements. If an editor is concerned about the risk vs benefit of publishing such statements, obtaining a legal review as part of the process of peer review is recommended. The legal review should be performed by an attorney with experience in media law. Even though legal review may result in delay and several requests for revision, it may help protect the editor and publisher from a libel claim. In addition, offering those criticized an opportunity to review the material before publication, if deemed appropriate by the editor, or to respond to the criticism after publication may reduce the risk of a successful claim.
Threats of litigation and fear of libel suits have kept some editors from meeting their ethical duties to authors, readers, and the public. For example, during the 1980s a number of medical journals declined to reprint retractions of articles by 2 separate researchers, Robert Slutsky and Stephen Breuning (even though the articles had been proven to be fraudulent and even after Breuning’s federal indictment), because of fear that the journals would be liable for publishing statements impugning the work of Slutsky and Breuning.20 Such defensive editorial practices should be avoided because they may impair the integrity of the journal and allow fraudulent research to continue to be read and cited. For example, allowing Slutsky and Breuning’s fraudulent articles to remain in the literature without retraction was an injustice to the readers of those articles.21 Biomedical editors and publishers should follow the statement on retractions from the International Committee of Medical Journal Editors22 (see 5.4.4, Scientific Misconduct, Editorial Policy for Detecting and Handling Allegations of Scientific Misconduct).
Another case in biomedical publication involving a claim against the Journal of Alcohol Studies demonstrates the need for an editor’s awareness of the risks of libel and the need for legal review of potentially defamatory material before acceptance for publication.23 In this case, an author sued the Journal of Alcohol Studies claiming breach of contract after the journal did not publish an “accepted” manuscript. The editor had determined the manuscript to be libelous after acceptance but before publication. The journal decided to publish the manuscript following an agreement with the plaintiff/author that he would drop his lawsuit. The editor said he had no choice in light of the mounting legal fees. Ironically, a libel suit was never filed after publication of the article because the person about whom the potentially libelous statements were made believed that readers could determine that the statements made about him were not truthful.23