Hilda Bastian is an NIH contractor for PubMed Health and PubMed Commons at the National Center for Biotechnology Information (NCBI), U.S. National Library of Medicine (NLM). She also seems to be a prolific science writer. Bastian recently informed the blog Retraction Watch that the NLM is planning a prominent display of Expressions of Concern (EoC) published by scientific journals. By her own admission, Hilda Bastian is not versed in scientific matters. Given what she intends to do, let us hope she is versed in legal matters, or at least willing to seek legal advice.
In the US, as in most societies under the rule of law, a person is deemed innocent unless proven guilty, and any suggestion that may affect someone’s reputation without hard proof constitutes defamation. By Bastian’s own admission, only about 25% of EoCs typically result in retraction. This begs the question: What do the authors whose papers received the remaining 75% of EoCs plan to do?
Lawyer Paul S. Thaler, a towering figure in scientific integrity may be the ideal person to assist such people determine their legal options. Paul S. Thaler made the following enlightening remark:
The first thing to remember is that the federal regulations, as well as the internal policies of most institutions, protect the confidentiality of respondents in research misconduct matters. Thus, as a matter of federal law, institutions are prohibited from disclosing the identity of an accused scientist, except on a “need to know” basis, for example, to a member of the investigation committee, unless and until a finding of research misconduct is made. These proceedings are not public as court is in criminal and civil disputes. It is more comparable to proceedings against other professionals, such as lawyers, who are governed by their licensing organization. Privacy in these matters is critically important as there is no public need to, or right to know, about professionals simply accused of wrongdoing. What the public has a right to know about is a professional who has been found responsible for wrongdoing. At that point, the public is alerted. But because a professional’s reputation is so important to his or her career, the specter of an accusation can permanently stain that reputation and frequently the accusation is not well founded. So the confidentiality of the process allows a full examination before the public is made aware. We certainly do want to know about those scientists who have actually done something wrong that impacts science, but we do not, and should not, be concerned with those who are good scientists but caught up in a sometimes very political, internal dispute.
The bold section is crucial because it implies that EoCs are in all likelihood illegal, and so is the dissemination of such statements. The public does not have the right to know about mere accusations of wrongdoing, or suspicions of invalid data resulting in EoCs. According to Hilda Bastian such EoCs are likely to be wrong in 75% of the cases. For example, pseudonymous Clare Francis, the venal whistle-blower of Retraction Watch, has scored plenty of false positives eliciting EoCs mostly in the 75% of valid papers. Yet we are not aware that Retraction Watch or other related venues have been sued yet. Hopefully, Hilda Bastian will reflect about her plans and seek legal advice before charging ahead.