One of the longer-awaited libel judgments of recent times was handed down on 6 July 2012, having been reserved for a period of over 5 months. Sharp J produced a comprehensive, 383 paragraph judgment comprehensively dismissing the claim by an Egyptian scientist against the scientific journal Nature (El Naschie v Macmillan Publishers Ltd (t/a Nature Publishing Group) & Anor  EWHC 1809 (QB)).
Much of the background to the case can be found in this Inforrm news story from November 2011. The Claimant, who was a litigant-in-person, assisted by his former wife Lydia Thorsen-El Naschie, was editor-in-chief and founder of Chaos, Solitons and Fractals (“CSF”), which is a journal “in the interdisciplinary field of Nonlinear Science, and Nonequilibrium and Complex Phenomena” and is published by academic publishing giant Elsevier. The Defendants did not admit his claim in the pleadings to be an eminent and highly respected academic, scientist and scientific publisher in the fields of Structural Engineering, Applied Mathematics, Applied Mechanics and Nuclear and High Energy Physics.
The Defendants were the publisher of one of the world’s most respected scientific publications, Nature, and one of its experienced science journalists Quirin Schiermeier (“QS”), who is based in Germany. In its 27 November 2008 edition, Nature carried an article by QS headed “Self-publishing editor set to retire” (“the Article”). The Article was pegged to the Claimant’s departure from his position as editor, and highlighted the number of papers by the Claimant which appeared in CSF, also questioning both their quality and the peer review processes in place at the journal. It carried comments from the Claimant himself, critics and supporters, and a representative of Elsevier.
The Claimant, who divides his time between England, Germany and Egypt, brought a claim against the Defendants for libel, and in his amended pleadings referred to “a form of conspiracy” involving them and others (particularly what he described as “the despicable blog” El Naschie Watch). An interim judgment ( EWHC 1468 (QB)), handed down by Eady J on June 10 2011 in response to a number of applications by the Defendants, dismissed the allegations of conspiracy as irrelevant, and considerably narrowed the number of issues in the case. A subsequent application by the Claimant for an adjournment was refused.
The Defendants advanced the defences of justification, honest comment and Reynolds Privilege. Before turning to these, the Judge first considered the meanings attributed to the article by the Claimant, and the Lucas-Box meanings justified by the Defendants. Although there were differences between them, these played no part in her conclusions on liability overall. The Defendants also defended three comments for the purposes of the defence of honest comment, which were identical to meanings justified in their Amended Defence.
The bulk of the judgment focuses on the defence of justification. Sharp J considered the expert evidence advanced by the parties, finding a range of fundamental problems with the Claimant’s experts, including, strikingly, the fact that one of them was his ex-wife.
Although the allegations that the Defendants sought to justify were divisible, the Judge identified
“a nexus between self-publication, quality, quantity (that is, excessive publication) and lack of peer review.”
To put the evidence into context, and by way of explanation, the Judge considered in detail the ethics and norms of scientific publication, and the nature of citation within academic journals (the original article had referred to CSF’s “impact factor” as possibly being a result of a high rate of self-citation).
The first meaning justified by the Defendants was that the Claimant had abused his position as CSF’s editor in chief by publishing an excessive number of articles written by himself. Considering the volume of self-publication both in itself, and in comparison with the practices of editors of comparable journals, the number of self-published articles was found to be excessive. What the Judge found was their poor quality meant that they were excessive in number, and that publication of them was an abuse of the Claimant’s position.
The Claimant’s practices did not comply with the norms of scientific publishing, and his approach was “deeply flawed” in a number of ways: first, his case that the ordinary rules did not apply to his journal was not open to him on the facts; second, there was no separation between objective science and opinion-led journalism; and, third, it did not meet the need for a level playing field with regard to publication in academic journals.
The second meaning was that the articles were of poor quality. The Defendants adduced the evidence of the eminent, internationally recognised theoretical physicist Professor Neil Turok. He identified fundamental defects in the Claimant’s work, including a failure to define terminology and concepts, conclusions unsupported by reasoning, and meaningless, obscure and simply wrong statements. The Claimant, and his expert witness, Dr Marek-Crnjac, failed to respond to these criticisms, failing to answer Professor Turok’s conclusion that the papers which he assessed “do not fulfil the most basic requirements of any paper deemed to be publishable in the Field.”
The third meaning was that the Claimant’s articles had been subjected to (at best) very poor peer review before publication. Beyond its fundamental importance to the scientific community in general, peer review is, said Professor Turok, of critical importance to the maintenance of high standards, and to the health and reputation of the field of theoretical physics. The Claimant had asserted that his papers were always subject to the appropriate level of peer review.
However, three aspects of the Defendants’ case contradicted this position: first, there were defects in quality in the Claimant’s papers which meant that they could not have been subject to adequate peer review; second, the dearth of documentary evidence (there was an “implausible absence of documentation”) supported the allegation that the process did not take place, or was flawed; and, third, the Claimant’s case on how the editorial processes operated at CSF did not disclose an appropriate system of review.
The fourth meaning was that CSF’s Impact Factor may have been inflated by excessive citation of the Claimant’s own articles. The citation of the Claimant’s own papers did have an inflationary effect on CSF’s Impact Factor, and Sharp J held that this citation was excessive, first because the majority of citations within the Claimant’s own papers were of papers written by him, and, second, because of the poor quality of the Claimant’s papers, which meant that they should not have been cited by him or any other author.
The fifth meaning was that there were reasonable grounds to suspect that the Claimant’s imminent retirement was connected to his faults in that role, alternatively that the Claimant was dismissed or forced to retire because of those faults. Contemporaneous documents released by Elsevier contradicted his case that it was his own decision to retire because, according to his pleaded case, he “found Elsevier’s increasingly commercial approach to its publication intolerable”. They showed that they had terminated their agreement with him, finding him difficult on a personal level, and flawed as an editor.
The sixth meaning was that the Claimant was cavalier about his academic and professional affiliations, alternatively that he had claimed affiliations to which he knew he was not entitled. The two specific groups of misrepresentations pleaded by the Defendants were those that appeared on his website, and on CVs submitted to academic conferences. In relation to claims made about positions at Cambridge, Frankfurt and Jiao Tong Shanghai Universities, the judge was satisfied that the Defendants had established the truth of the higher meaning complained of by the Claimant: that he was not merely cavalier about his affiliations, but had claimed affiliations to which he was not entitled.
The final meaning was the Claimant had used, or caused others to use, fictitious names to respond to enquiries about his editorial practice. Sharp J described this as a “curious… even bizarre” feature of the case. The original article featured references to P. Cooper and P. Green, claimed on behalf of the journal to be the editorial board’s spokesperson and legal adviser respectively. A number of other purported staff members emerged in the course of correspondence between the journal and contributors, QS and others. Sharp J found it “implausible” that the Claimant left others to deal with pressing matters concerning CSF when he regarded it as “his” journal.
The defence of honest comment pleaded by the Defendants covered three of the principal allegations complained of, regarding peer review, poor quality papers and inflation of the Impact Factor. The disputed elements of the defence were whether the allegations were conveyed by way of comment or fact, and whether they were opinions which an honest commentator could express on the subject-matter concerned. The Judge held that the defence was made out: the three were recognisably comments, and were pertinent to the subject matter.
The defence of Reynolds privilege was the final plank of the Defendants’ case. Detailed evidence was provided of the research and inquiries undertaken by QS in preparation for the publication of the article. QS had retained both email exchanges and handwritten notes of telephone conversations with those he had spoken to about the proposed story. The Judge identified 17 stages in QS’s research and preparation for it, including analysis of the nature and frequency of the Claimant’s citations.
The Judge found that the article addressed matters which “are and were of high public interest”. Given the significance of publication records to Nature’s readers, and the wider scientific community, the specific allegations against the Claimant “were integral to the public interest element in the article”. She found that the tone of the piece was “moderate and balanced”, as were the picture and captions used. The Claimant’s side of the story was responsibly dealt with and conveyed by the article, and he was given the chance to respond, although he did so in a convoluted way both in person and, apparently, via pseudonyms.
Internal emails showed that extensive verification was undertaken by the Defendants. Three drafts of the article were produced, and it was only finalised after legal advice. The judge found that the process overall was “responsible and fair”. She specifically referred to the article’s approach to the Claimant’s qualifications, his self publication and citation, the quality of his work, the approach to peer review, and his departure from Elsevier, concluding that the article “was the product of responsible journalism”. The Reynolds defence succeeded.
The Claimant’s defeat could hardly have been more comprehensive, with all of the Defendants’ defences succeeding and his own integrity, as a scientist and as an individual, questioned by Sharp J throughout her judgment. If his intention was to suppress questioning or criticism of his work then the strategy backfired spectacularly.
The success of all three defences testifies to the scrupulous attitude of Nature to a controversial subject. Working with two editors, the journalist ensured that all the parts of the Article stood up, carrying out an unusual amount of research and analysis for an 800 word news item, including the citation analysis detailed in the judgment. As well as being “a public interest story par excellence”, in many ways the Article was a model of responsible journalism with a moderate tone adopted, and the Claimant (and his supporters) given ample opportunity to put his side of the story. The decision emphasises the value of this careful approach.
More generally, the case has received extensive comment in the media. A news item in Nature acclaimed the publication’s victory but emphasised that the law was still having a chilling effect on the kind of journalism it produces. A Sense About Science spokesperson told the magazine that
“It’s not really a ‘win’ [for Nature] if it took three years and cost enough money to bankrupt a normal person”.
Nature also ran a more personal piece by QS about the experience of being involved in the litigation, entitled “I was sued for libel under an unjust law”. His criticisms focus largely on the burden of proof which, he says “falls too heavily on the defendant to prove what they said was true”. Speaking to The Guardian, the Defendants’ solicitor, Niri Shan at Taylor Wessing, commented that the Claimant’s ability to bring the matter to trial
“highlights the urgent need for libel reform in the area of science reporting, as the law, as it currently stands, is stifling scientific debate.”
Science-focused publications such as Wired and New Scientist also carried items about the case while El Naschie Watch has sustained its relentless coverage of the Claimant and his activities in the aftermath of the judgment.
How does the decision reflect on prospective libel reform, or the concerns of campaigners? This year’s Defamation Bill extends privilege to peer reviewed statements in academic or scientific journals in Clause 6. However, the scope of this action was delineated by the Judge from the start, and she was clear that it was about “the integrity of editorial self-publication and peer review”, and did not concern the correctness of any theories advanced by the Claimant, or anyone else practising theoretical physics:
“It has not concerned the qualities of the Claimant as a scientist generally, or the substantive merits of his theories which are matters which could and should be capable of being addressed (if not resolved) within the scientific community by ordinary scientific discourse and debate.”
The Claimant’s profession, academia, has, like any other, widely accepted standards which set the bar for participation or recognition within it. The Article questioned whether the Claimant’s work met these standards, not whether his ideas were sound in themselves and Clause 6, the utility of which is in any case questioned by Mullis and Scott in this Inforrm Note on the Bill, would have been of little use to the Defendants.
Campaigners such as Libel Reform call for the extension of a “public interest” defence, but the Reynolds defence employed in this litigation, and now codified in the Bill at Clause 4, was more than adequate to protect the rights and interests of Nature. Setting the parameters of such a defence would be a tricky task which would, commentators say, risk promoting freedom of expression disproportionately vis-à-vis the right to reputation.
The real issue here, and in similar cases, appears to lie not in the law itself but in the cost of litigation. Large media companies with deep pockets can afford the robust approach which leads to them defending claims in the High Court over the course of several years, others cannot. Reforms currently being debated in Module 4 of the Leveson Inquiry, such as the establishment of a Media Standards Authority or Tribunal in which dispute resolution was cheaper and faster, might, in a similar situation, offer the best solution for claimants and defendants alike.
Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.