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Journal's 'responsible journalism' and story's 'public interest' undermine libel claim

Out-Law News | 10 Jul 2012 | 5:03 pm | 3 min. read

A journal did not defame an academic because a report that was critical about the academic's research work was "the product of responsible journalism" and resulted in "information of high order of public interest" being published, the High Court has ruled.

Mrs Justice Sharp said that Nature Publishing Group could rely on the so-called 'Reynolds defence' to protect it from liability for defaming Professor Mohammed Salah El Din Hamed El Naschie. Previous rulings in cases involving former Irish Prime Minister Albert Reynolds and Saudi billionaire Mohammed Jameel have established that journalists cannot be sued for libel if they show that theirs was responsible journalism serving the public interest.

El Naschie had complained that an article that appeared in a November 2008 edition of Nature magazine, a scientific journal, had defamed him. The report had claimed that El Naschie had used his position as editor of another scientific journal, Chaos, Solitons and Fractals, to publish research papers that had not been properly reviewed by academic peers. 

Academics' reputations rely heavily on the number of articles they get published, the quality of their work and the prestige of the publications they appear in. 

"My conclusions are that the [Nature] article is substantially true ..., that it contains comments which are defensible as honest comment and that it was the product of responsible journalism, so that the defence of Reynolds privilege succeeds," the judge said in the ruling

Mrs Justice Sharp said that, compared to papers written by other editors of other journals, El Naschie's "self-citation" was "obviously excessive". The number of articles written by him which had been published in Chaos, Solitons and Fractals "dwarfs" the number penned by the editor with the next highest number of self-published articles, the ruling said. Only a small percentage of El Naschie's papers had featured in other publications, whereas most of the papers published by other editors were not published in the journals they edited, she said.

"The inescapable conclusion therefore is ... that the papers published in [Chaos, Solitons and Fractals] under [El Naschie's] editorship discussed and referred to his work to an unjustified extent," the judge said.

Mrs Justice Sharp added that concerns expressed by one academic that El Naschie's papers were of poor quality were also "well-founded".

The importance of peer-reviewed academic works was also established, the judge said. Nature had relied on guidelines from the Committee on Publication Ethics (COPE) and Elsevier, which publishes Chaos, Solitons and Fractals. The judge said the guidelines "encapsulate the norms of scientific publishing and explain why those norms matter."

Elsevier's guidelines state that peer-review of articles is an "essential building block in the development of a coherent and respected network of knowledge" and that it reflects directly on the "quality of the work of the authors and the institutions that support them." Peer-review also helps editors "in making editorial decisions" and that editors "should recuse themselves" from the process of making decisions on "manuscripts in which they have a conflict of interests", such as having a connection to the author.

Mrs Justice Sharp said that the Nature magazine's report on El Naschie defamed the academic but that Nature could rely on the 'honest comment' defence, which protects publishers from liability for defamation if they have expressed honestly held views when passing comment, to defend against liability for some elements of that defamation.

The judge also said that Nature could rely on the 'Reynolds defence' due to the way the article had been researched and reported. She said that the Nature article was "obviously critical" but that its tone was "moderate and balanced" and that El Naschie's side of the story had been "responsibly dealt with and reflected in the article". It was also "apparent" that there had been a "careful internal process of review" within Nature magazine to check the investigations and the facts of the story, she added.

"The process overall, whether with regard to the gathering of information, its verification or its ultimate publication was in my judgment responsible and fair," Mrs Justice Sharp said.

The article also dealt with matters that were "of high public interest", the judge said.

"These include the overall integrity of the peer review process set against the particular responsibility of editors of peer review journals, or journals which are presented as such by a reputable publisher such as Elsevier, in relation to issues such as self-publication and self-citation," she said. "The public interest in relation to these matters was enhanced by [El Naschie's] self-citation rate in 2008."

"The retirement and the possible reasons for the departure of the Founding Editor of many years standing of such a journal was also a matter of public interest as was the validity of his claimed associations and qualifications," Mrs Justice Sharp said in the ruling. "The allegations made against [El Naschie] were not only part of a story which served a public purpose, in my view they were integral to the public interest element in the article. This was in other words, a public interest story, par excellence."

"Nature has vigorously defended this article for over three years and we are all delighted that the court has found our journalism to be honest, justified and in the public interest," Dr Philip Campbell, editor-in-chief of Nature, said in a statement.

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