AMA Manual of Style - Stacy L. Christiansen, Cheryl Iverson 2020
Defamation, Libel
Ethical and Legal Considerations
Truth is generally the best vindication against slander.
Abraham Lincoln1
Defamation is the act of harming another’s reputation by libel or slander and thereby exposing that person to public hatred, contempt, ridicule, or financial loss.2,3,4,5,6,7 Libel is false and negligent or malicious publication that involves words, pictures, or signs.2,4 Technically and historically, libel has differed from slander in that slander was defined as defamation by oral expressions or gestures and libel was defined as defamation in writing or fixed format. For libel and slander, resulting liability depends on a third party reading or hearing the defamatory words. With the advent of modern forms of communication, the distinction between these terms has become blurred because of the mix of print and electronic text, audio, and video content in multiple forms of media.3(§5.01),4
Truth is considered a defense against libel in most cases.3(§5.09) However, the context of the alleged libelous communication; effect of the communication on an average reader; intentions and actions of the author/writer, editor, and publisher; and location of the publication have influenced liability.3,4,5 For example, a statement may be truthful in isolation, but coupled with other statements or placed in a different context, the same statement could result in an overall false impression, which could result in a determination of defamation.3(§5.09) In contrast, a statement with minor inaccuracies or omission of inconsequential details could still be considered substantially true and thus not be determined to be defamatory.3(§5.09) Libel law is complex, and it is difficult for an author, editor, or publisher to know with certainty whether the text of a specific manuscript could be defended successfully in a libel lawsuit. Editors and publishers should consult lawyers with expertise in media law when concerned about risks of libel and should carry liability insurance that covers claims for libel (see 5.9.8, Defense Against Libel Suits and Claims, and 5.9.9, Minimizing the Risk of Libel).
In the United States, libel law generally requires courts to balance 2 competing values: freedom of expression vs protection of personal reputation.3,5,8 Freedom of expression has its foundation in the First Amendment of the US Constitution, and this freedom has been generally assured in instances that involve public officials governed by US law since a landmark US Supreme Court decision in 1964.9 In New York Times Co v Sullivan,9 an elected official in Alabama sued the New York Times for publishing an advertisement that included statements, some of which were inaccurate, about police actions against students who participated in a civil rights demonstration; the elected official had supervisory responsibility over the police force about which the statements were made. After a series of decisions on this case in which it was demonstrated that some of the published statements were false, the US Supreme Court determined that a public official could not recover damages for publication of a false statement that relates to his or her official conduct unless it is proven that the defendant published the statement knowing it was false or with reckless disregard for whether it was false (ie, actual malice). This decision established important protections for the press against libel claims based on First Amendment protections to ensure that debate on public issues remains “uninhibited, robust, and wide open,”4(p319),9 but decisions in US courts have not always resulted in such favorable protections for the press.3,5
Libel threats and suits have been used to silence those with opposing viewpoints and censor the free flow of information. For example, SLAPP suits (the acronym for strategic lawsuit against public participation) have been used in attempts to intimidate those who wish to publish criticism or information that could expose wrongdoing on the part of a particular industry or corporation.3(§5.15),5 Even if the suit is groundless and the plaintiff eventually loses the case, a protracted and expensive legal battle may be damaging to an author, editor, publisher, or journal. For example, in 1984, Immuno AG, a multinational pharmaceutical company based in Austria, brought a $4 million libel suit against an unpaid editor of the Journal of Medical Primatology, Jan Moor-Jankowski, and the journal’s publisher.10 The lawsuit followed publication of a letter from an author who raised questions about Immuno AG’s plans to conduct hepatitis research in Sierra Leone, West Africa, using chimpanzees caught in the wild. Before publication of the letter, Moor-Jankowski had sent the letter to Immuno AG for review and requested comments and a reply to be published along with the letter. The company rejected the opportunity to reply and threatened litigation. Moor-Jankowski suggested that Immuno AG contact the author for further information, but after no response was received from the company, the Journal of Medical Primatology published the letter. After extensive and costly legal proceedings (the publisher was uninsured), the Appellate Division of the Supreme Court of New York ruled that the statements contained in the letter were either opinion or factual statements that Immuno AG had failed to prove false. Immuno AG petitioned for hearing by the US Supreme Court, but that petition was denied in 1991.11
In US courts, most libel cases have been difficult for plaintiffs to win. This is not necessarily the case in other countries, and in recent years, libel tourism, in which lawsuits are filed in countries other than where the alleged defamation occurred or that may be more amenable to plaintiff’s allegations, has become a concern.6,12 For example, before the UK Defamation Act of 2013,13 libel laws were known to be more favorable to plaintiffs in the United Kingdom.8,14 The UK Defamation Act has 2 sections that help protect scholarly journals. Section 6 stipulates a protection for scientific and academic journals provided that an alleged defamatory statement “relates to a scientific or academic matter” and that it has undergone an independent review by the editor of the journal and 1 or more persons with expertise in the matter concerned.13 Section 9 of the UK Defamation Act specifically addresses libel tourism and limits courts’ geographic jurisdiction over claims.13 In recent years, several cross-national libel cases have been dismissed or decided in favor of journal defendants.15,16,17,18 For example, in 2012, Andrew Wakefield, whose research that claimed a relationship between MMR vaccination and autism had been discredited, sued the BMJ and its editor for a series of articles that reported on the discredited research that were published in 2011.16 Wakefield filed suit for defamation against the UK-based BMJ in 2012 in Texas court, after he had moved from London to Texas. Texas courts denied Wakefield’s suit and appeal on the grounds that he did not have standing to sue the UK-based BMJ in Texas. Subsequently, the Third Court of Appeals ruled in 2014 that Texas courts had no jurisdiction over this case and that “simply making an alleged article accessible on a website is insufficient to support specific jurisdictions in a defamation suit.”16,17
Publication is an essential element for a legal action of libel.3(§5.02) In this context, publication means that the alleged libelous communication was transmitted to a third party who read, saw, or heard the alleged libelous communication.3(§5.02) According to Hart, “as a general matter, courts view publication of material on the Internet as equivalent to publication through traditional print media.”4(p321)
Courts have distinguished between those who publish third-party information (ie, publishers) and those who provide facilities to third parties to transmit information (ie, online service providers). Editors and publishers of scientific journals, whether publishing information in print, online, or in both media, generally review, edit, and control the information that is transmitted and delivered, whereas online service providers may not provide such oversight and control of third-party postings.4(p324) In Stratton Oakmont, Inc v Prodigy Services Co,19 the court held that even an online service provider could be held liable for a subscriber’s defamatory statement because the online service provider exercised “sufficient control over its computer bulletin boards to render it a publisher with the same responsibilities as a newspaper.” Thus, scientific journals are more vulnerable to libel suits than are online service providers because of the editorial control their editors typically exercise.
A publication is considered defamatory when it includes each of the following3,4,5:
■A substantially false statement concerning another
■Publication to a third party (ie, someone other than the person who made the statement or the person who is the subject of the statement) (Note: there is no legal privilege to make or repeat the false statement; however, there may be exceptions, such as in publication of testimony made during judicial or legislative proceedings; see 5.9.7, Republication and News Reporting)
■Fault amounting to at least negligence if involving a private individual (ie, failing to meet the minimum standards that a reasonable person would have been expected to meet in researching, fact checking, writing, reviewing, and publishing the statement) or actual malice if involving a public figure (ie, publishing with knowledge that the statement is false or with reckless disregard for the truth of the statement)
■Injury to reputation results from the statement
5.9.1 Living Persons and Existing Entities.
A statement generally cannot be libelous unless it is “of and concerning” a living person or existing entity (eg, corporation, institution, or organization).3,5 According to a 1992 case, Gugliuzza v KCMC, Inc, “once a person is dead, there is not extant reputation to injure or for the law to protect.”20 Even when the living person or entity is not named in the statement, if the person’s or corporation’s identity can be determined from other published facts, a case for libel can be made.
5.9.2 Public and Private Figures.
A public figure is a person who assumes a role of prominence in society, such as an elected official, a celebrity, or an infamous criminal. In cases of alleged libel, public figures are afforded less legal protection than private individuals.3,5 In a 1964 case, New York Times Co v Sullivan,9 the US Supreme Court determined that for a public official to prove defamation, the official must demonstrate that the alleged defamatory statement was made with actual malice (ie, with knowledge that the statement was false or with disregard for the truth of the statement) (see 5.9, Defamation, Libel). A private figure is defined in the negative: someone who is not a public figure.5 In contrast, a private individual need not prove malice, only negligence, to be successful in a libel suit.3,4,5
In legal settings, biomedical authors and commentators who publish might be considered limited-purpose public figures, for example, if they publish articles or online-only comments in an attempt to influence a matter of substantial public interest, a governmental agency decision, or legislation.3,5 In some cases, an author who publishes might be considered a limited-purpose public figure among the community represented by the readers of a specific publication, including journals, websites, blogs, social media, and email lists or forums.4,21,22
Answers to the following questions may aid in determining public figure status of an individual and vulnerability to a claim of defamation when a personal statement about an individual is published3,5,7:
■Is the person described someone who has assumed a role of prominence or notoriety?
■Does the content of the statement pertain to a matter of public controversy or public concern?
■If the statement refers to a public figure, does it contain references to the individual’s public figure status (eg, the individual’s job performance or public behavior)?
■If the statement refers to a public figure, will the connection between such references and the individual’s public status be evident to a reasonable reader?
■If the reference is peripheral to the person’s public figure status or responsibilities, does it involve nonrelevant, highly intimate, or embarrassing facts?
5.9.3 Groups of Individuals.
Defamatory statements about groups of individuals are usually not legally actionable if the group is so large that no individual can be identified in the statements.3,5,7 For example, broad statements about specific groups (eg, physicians) or entities (eg, the pharmaceutical industry) are not at risk for libel actions because no single individual or company is identifiable.
5.9.4 Statements of Opinion.
Statements that contain pure opinion (ie, purely subjective judgment without assertion of fact) are not legally actionable because opinions cannot be proven true or false.3(§5.08),5,6,8,23 However, an opinion that includes, asserts, or implies facts that are false and defamatory could result in liability.5,6,24 As noted previously, publication of an expression of opinion about a public figure may be protected under the fair comment doctrine (see 5.9.2, Public and Private Figures).5,7 Fischer et al3(§5.08) offer the following questions to help readers (as well as viewers and listeners) distinguish statements of fact from statements of opinion:
■Can the statement be verified or proved to be true or false?
■Are the facts on which the opinion is based fully disclosed to the reader?
■If not, are the facts on which the opinion is based obvious to a reasonable reader or readily available to the reader from other sources?
■Are both the disclosed and undisclosed facts on which the opinion is based substantially true?
■Does the context of the opinion suggest to a reasonable reader that it represents opinion and not fact?
■Have the statements that contain opinions been published in a manner that informs readers that they deal with opinion, commentary, or criticism (eg, a clearly identified editorial or opinion page)?
5.9.4.1 Editorials, Letters, and Reviews.
In some publications, such as newspapers and popular magazines (whether print or online), editorials, correspondence, and reviews tend to alert the reader that the content is opinion. This is not always the case for scientific journals. No matter where the material is published, malicious criticism of an individual or entity could be considered defamatory, especially if it is demonstrated that such criticism was not based on facts.5,24 However, criticism of a public figure or public institution or commercial entity may not be actionable if such criticism is scholarly and supported by evidence and documentation. Similarly, scholarly criticism of an individual’s research, theory, opinion, or previous publication that is supported by evidence and documentation may not be actionable for libel.6,12,17,21,22 In any case, editors and publishers should be cautious about statements critical of individuals or commercial entities made in editorials, letters, and reviews. Use of such phrases as “in my opinion” or “I believe” will not necessarily protect an author against an action for libel. Whenever possible, authors of letters, editorials, and reviews in biomedical publications should support opinions, assertions, and interpretations with documentation and/or formal references, and editors should review all such material and require authors to provide appropriate documentation and references. Editors and publishers should consider obtaining legal review of material being considered for publication that contains potentially libelous statements. In addition, publishers should have liability insurance that covers the costs of defending against suits for libel6 (see 5.9.8, Defense Against Libel Suits and Claims, and 5.9.9, Minimizing the Risk of Libel).
5.9.4.2 Reviews of Books and Other Media.
For reviews of books and other media (eg, video, film, audio, journals, websites, exhibits, performance, software, applications), well-documented critical comments about the book, media, or the work of an author, editor, publisher, producer, or developer are generally acceptable, but critical comments about the specific author, editor, publisher, producer, or developer should be avoided. For example, in the 1994 seminal case of Moldea v New York Times Co,25 the author of a book that received a disparaging review in the New York Times sued for libel after trying and failing to get the New York Times to publish his rebuttal letter. The book review included a number of critical comments, including a statement that the book contained “too much sloppy journalism to trust the bulk of this book’s 512 pages.”8 This comment was supported with specific examples of misspellings and allegations of mischaracterization of events.8 After an initial decision in favor of the New York Times, an appeal that favored the author’s claim, and an unusual reversal by the appeals court, the libel suit was dismissed. The final decision in this case reaffirmed impunity from libel suits for opinion pieces and provided a “workable test for analyzing allegedly defamatory statements of opinion.”8
5.9.5 Social Media.
Content published in social networking sites, blogs, and online discussion groups is subject to the same norms, standards, and regulations as is all other published and posted content. The Associated Press recommends caution in sharing content via social media and notes the following: “Because of the difficulty in verifying the authenticity of material posted on social media sites, it is important not simply to lift quotes, photos or video from social networking sites and attribute them to the domain or feed where the information was found”5 (see 5.6.7.11, Social Media, and 5.8.3, Patients’ Rights to Privacy and Anonymity and Consent for Identifiable Publication).
5.9.6 Works of Fiction.
Fictional accounts are not actionable for defamation unless a reasonable reader believes that the story is depicting factual events and can identify the person bringing suit in the story.3 Humor, satire, and parody may be exempt from defamation suits as long as they are clearly works of fiction.3
5.9.7 Republication and News Reporting.
A publication, author, or journalist can be held liable for republishing a defamatory statement. For example, if an author or journalist republished a defamatory statement about a public figure knowing that the statement was false, the publisher and author could be held liable. Similarly, if the republished false statement was about a private figure, the publisher and author could be held liable for defamation even if the statement was published without knowledge of its falsity (ie, through negligence). However, under the privileges of fair reporting an author or journalist may repeat a previously published defamatory statement if it is part of official proceedings (eg, formal governmental proceedings or press conference) as long as the account is fair and accurate.5 Under the privilege of neutral reporting, an author or journalist may republish an account of a previously published defamatory statement as long as the second account is a neutral or balanced report of a public controversy or matter of legitimate public concern5 (see 5.9.4, Statements of Opinion). However, this privilege is not supported in all jurisdictions; thus, reporters, authors, and editors should follow the principles of careful reporting, editorial evaluation, and judgment. Scientific journal authors, reporters, and editors who rely on confidential sources for potentially defamatory statements are at risk for libel action and should carefully consider the risks and benefits of the value of publishing information from undisclosed sources. For example, in the United States, shield laws, intended to protect news reporters from being legally forced to reveal identities of sources, vary by state, and their application has been challenged in a number of cases.3(§5.09),4(pp45-46)
5.9.8 Defense Against Libel Suits and Claims.
Truth is a defense against claims of libel in most cases (see 5.9, Defamation, Libel). Aside from consideration of the truth of damaging statements, some jurisdictions also consider whether damaging statements were made with intent to harm.3(§5.09) 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 had chilling effects on some editors and journals and kept them from meeting their ethical duties to authors, readers, and the public. In a legal context, the term chilling effect refers to the stifling or discouragement of legitimate speech or publication by the threat of legal sanction via vague or very broad laws. For example, during the 1980s, a number of medical journals declined to publish retractions of articles by 2 researchers, Slutsky and 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 Robert Slutsky and Stephen Breuning.26 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.27
Another case that involved 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.28 In this case, an author sued the Journal of Alcohol Studies in 1989 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.28
Until recently, libel laws in the United Kingdom had been reported to have significant chilling effects on journals, especially because of the resources required to defend against claims. A 2010 informal survey of 22 leading scientific and medical journals conducted by the journal Science found that these concerns were not uncommon, especially among medical journals in the United Kingdom.12 Several recent but lengthy libel cases against journals, in which the cases were dismissed or awarded to journal defendants,12,15,16,17,18 and UK legislative reform13 have provided journals with additional legal precedents and protections from resource-draining libel threats and claims.
The Science survey also included reports from journals and publishers dealing with stifling libel suit threats. For example, a publisher with the American Psychological Association reported dealing with “about 20-30 threats of lawsuits related to manuscripts in prepublication status” during a 25-year period.12
5.9.9 Minimizing the Risk of Libel.
The suggestions in this section are offered to help authors, editors, and publishers reduce the risk of libel in biomedical publication. All statements of fact about individuals or commercial entities should be supported or documented and verified to be accurate in the context in which they were and are made. Similarly, statements of opinion should be supported or based on documented facts and should not be malicious. In addition, authors should disclose any conflicts of interest or concerns about the potential reactions of those criticized to the editor so that the editor and author work together to ensure responsible publication (see 5.5, Conflicts of Interest). Editors should consider offering those who are criticized in a submitted manuscript an opportunity to review the material of concern before publication, to respond to the criticism after publication, or both. Journals that publish postpublication online comments, open peer review comments, audio and video, and blogs should consider risks of libel and apply the same policies and procedures that are used for traditional manuscripts and published articles. In addition, editors should consult experienced media attorneys when necessary, and publishers should have insurance that covers claims for libel. None of these suggestions will ensure that a lawsuit—even if frivolous or groundless—will not be made, but they should help editors, authors, and publishers avoid situations in which such claims have merit.
5.9.10 Demands to Correct, Retract, or Remove Libelous Information.
Demands to correct or retract allegedly libelous material should be handled carefully. Removal of libelous information in print is not possible, and the standard course of action has been to publish corrections or retractions in an expeditious and prominent manner.4,5 Online versions that are close in content and form to the printed version and online-only content should follow the same policies and procedures. Online archives, which are considered part of the original publication, may be corrected, edited, or removed, and continued posting of defamatory material in an online version of archive—without an appropriate correction or retraction—may increase the risk of liability for the author, editor, and publisher.4 However, demands to remove libelous material must be carefully balanced against the need to preserve the integrity of the scientific record, and correction and retraction are always preferred over removal of content.29,30 Editors should consider consulting a lawyer with expertise in media law to determine the best course of action.
Editors and publishers should follow the recommendations on publishing corrections and retractions from the International Committee of Medical Journal Editors31 and the US National Library of Medicine32 (see 5.4.4, Editorial Policy and Procedures for Detecting and Handling Allegations of Scientific Misconduct). If an allegation of defamation or threat to take legal action because of alleged defamation is determined to be frivolous or groundless, the editor should inform the person making the allegation that there is no merit to the allegation or threat, and no further action should be taken. If the allegation is considered to have merit, the editor may wish to consider publishing a letter from the person or representative of the entity criticized and ask the author to provide a letter of explanation or apology for publication, or the editor may choose to publish a correction or a retraction. In each case, reciprocal linking should be established between any published letters, correction, or retraction and the original article. In rare and truly extraordinary circumstances, the editor may choose to remove or obscure the libelous material from an article or other online posting provided that a brief explanation of why the material has been removed or obscured is included and is made easily accessible. If the libelous material is so inextricably embedded in the context of an article that it cannot be partially removed or obscured, an entire article may need to be removed from the online archive provided that the bibliographic citation to the article remains intact and a brief explanation of why the article has been removed is included with or linked from the citation. In each of these cases, correction or retraction is highly preferred to changing or removal of content.31,32 In addition, republication in derivative products (eg, reprints, e-prints, collections) of articles that contain defamatory material must be avoided because these are not part of the original publication and republication of known libelous material may result in additional liability and damage claims.
5.9.11 Resources for Other Liability Concerns.
There are other sources of information on legal and liability matters for publishers and editors that are beyond the scope of this manual. Perle, Williams & Fischer on Publishing Law,3 Internet Law: A Field Guide,4 and The Associated Press Stylebook and Briefing on Media Law5 are good resources for information that address many of these issues, including those related to copyright, patent, trademark, and domains (see 5.6, Ethical and Legal Considerations, Intellectual Property: Ownership, Access, Rights, and Management), privacy and consent (see 5.8, Protecting Research Participants’ and Patients’ Rights in Scientific Publication), advertising (see 5.12, Advertisements, Advertorials, Sponsorship, Supplements, Reprints, and e-Prints), online promotion, spam laws, data collection and privacy, circulation audits, taxation and accounting issues, electronic contracts, and employment issues.
Principal Author: Annette Flanagin, RN, MA
Acknowledgment
I thank the following for review and helpful comments: Howard Bauchner, MD, JAMA and JAMA Network; Timothy Gray, PhD, JAMA Network; Iris Y. Lo, JAMA Network; Debra Parrish, JD, Parrish Law Offices, Pittsburgh, Pennsylvania; and Joseph P. Thornton, JD, JAMA Network and American Medical Association.
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