SLAPPS in Medicine: Can medical researchers ever be at risk for being sued for libel?
It has become a common technique for large companies or other powerful organizations, when they meet public opposition, to use a strategy called strategic lawsuits against public participation, or SLAPP for short. I have seen one of these in action. In the case I observed, a large development company wanted to obtain a parcel of public land by offering the US Forest Service a swap for an obviously inferior piece of land the company owned. Many citizens objected and organized against the proposal. Their actions had a reasonable chance of blocking the land swap. The company responded by suing the leaders of the citizens’ group — a SLAPP. The key concept of these suits is not that the instigators expect to win them They almost never do, even on the rare occasions when they make it to trial. But just the threat of a lawsuit and huge monetary damages has a chilling effect on ordinary people, who do not have armies of lawyers. It puts them through stress and, most importantly, great financial cost to contest the SLAPP. It has the effect of frightening off opposition.
Could a similar process happen in medical research? A recent example suggests that this is possible. The details are presented here. The authors ask this question:
Does fear of libel lawsuits influence what gets published in medical journals? We suggest it may, especially when the conclusions run counter to corporate interests.
The particular case involved a study in which the researchers investigated the relationship between TV advertisements for fast food and children’s perception of the product. As it happens, 99% of fast food advertising directed at children comes from only two companies: MacDonald’s and Burger King. The investigators concluded that the companies failed to comply with the guidelines of the Children’s Advertising Review Unit of the Better Business Bureau. The authors then submitted their findings to Pediatrics, a journal of the American Academy of Pediatrics. The manuscript review process stopped when the legal department of the Academy recommended that the names of the fast food companies be removed from the paper. The lawyers were concerned about being sued by one or both of these fast food giants. However, the authors believed that naming names was important and they withdrew the paper from consideration. Here is what they were told by the journal editor:
In the event that a defamation claim is brought as a result of the publication of this article, the publishing company could be named as defendants. Based on these findings and advice from counsel, we recommend the article not be published.
The article eventually was published by the journal PLOS One, with the company names included. This series of events raises important questions for medical research. Remember the point of SLAPPs is not to actually win a libel suit. Rather, it is to put the SLAPP target though trouble and expense sufficient to warn them off. Valid medical research cannot be libel. There is actually a 1994 court decision (Underwager v Salter) that states scientific disagreements should be decided in the scientific, not the legal arena. And truth is always a defense against libel.
I have no idea if this sort of thing is an isolated instance or happens more frequently. I have long been concerned that, with the decline of federal NIH support for medical research, industrial financial support carries the risk of compromising the work. This is what cannot be allowed to happen:
. . . any article that reaches negative conclusions about a company’s practices or products risks rejection, as it is company practice today to strategically threaten libel suits to ward off legitimate criticism.
This is serious issue, one all of us who use the medical research literature need to think about.