June 26, 2013 |

Legal guidance for journal editors


Legal issues in scholarly publishing often concern allegations of libel and plagiarism, accusations of ethical misconduct or copyright infringement, and disputes about authorship. It is never advisable to engage in any correspondence or debate with a complainant yourself. If you receive a complaint or have any concerns regarding a published or submitted article in any of these respects, please contact us immediately, so that we can address and resolve the issue, seeking counsel’s guidance when appropriate, and thereby assuring the integrity of your journal is preserved.

We require authors to comply with the highest standards, and authors are required to make legally binding warranties in the following areas:

  • Authors must avoid making defamatory statements in submitted articles which could be construed as impugning any person's reputation, for example, making allegations of dishonesty or sharp practice, plagiarism, or misrepresentation; or in any way attacking a person's integrity or competence.
  • Authors must ensure all persons who have a reasonable claim to authorship are named in the article as co-authors, and must warrant that they have been authorized by all such co-authors to act on their behalf, and have agreed the order of names in the publication of the article.
  • Authors must ensure they have obtained the necessary written permission to include material in their article that is owned and held in copyright by a third party, which includes, but is not limited to, any proprietary text, illustration, table, or other material, including data, audio, video, film stills, and screenshots, and any supplemental material.
  • Authors must warrant that (apart from any such third-party copyright material) their article is entirely their original work, and does not infringe the intellectual property rights of any other person or entity and cannot be construed as plagiarizing any other published work, including their own published work.
  • Authors must warrant that their article is not currently under submission to, nor is under consideration by, nor has been accepted by any other journal or publication, nor has been previously published by any other journal or publication, nor has been assigned or licensed by them to any third party.
  • Authors must ensure that the article contains no statement that is abusive, defamatory, libelous, obscene, fraudulent, nor in any way infringes the rights of others, nor is in any other way unlawful or in violation of applicable laws.
  • Authors must ensure that any patient, service user, or participant (or that person's parent or legal guardian) in any research or clinical experiment or study who is mentioned in their article has given written consent to the inclusion of material pertaining to themselves, and that they acknowledge that they cannot be identified via the rticle and that they have been anonymized and that they are not identified in any way; where such a person is deceased, authors must obtain the written consent of the deceased person's family or estate.
  • Authors must ensure that all mandatory laboratory health and safety procedures have been complied with in the course of conducting any experimental work reported in the article, which must contain all appropriate warnings concerning any specific and particular hazards that may be involved in carrying out experiments or procedures described in the article or involved in instructions, materials, or formulae in the article; include explicitly relevant safety precautions; and cite, if an accepted standard or code of practice is relevant, a reference to the relevant standard or code.
  • Authors are required to review our Publishing Ethics and Conflicts of Interest Disclosure policies, and will include in the text of the article an appropriate statement should they have a financial interest or benefit arising from the direct applications of their research.
  • Finally, authors undertake to indemnify Taylor & Francis and its affiliates in full against all loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid as a result of any breach of these warranties.

Libel

All journals published from Taylor & Francis in the U.K. are governed by English libel and defamation laws, manifest for example in the Defamation Act 2013 which “aims to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation.”

Libel is any intentional or unintentional defamatory statement in permanent form: in writing, in electronic media and pictures. A statement is libelous if it can be proved capable of being understood as referring to the complainant, even if it does not actually name him or her (so just changing the name of a person or place is not enough). A defamatory statement is one which makes people think worse of someone. It can be a statement of hatred, ridicule, or contempt toward another person or which causes the subject to be shunned or avoided, lowers the subject in the estimation of right-minded people, or implies a lack of qualification, integrity, knowledge, skill, capacity, judgment, or efficiency to conduct business. It would also include allegations of dishonesty, insolvency, or sharp practices.

The complainant has to prove that the words or statements in question are actually defamatory, that they refer to or are understood to refer to him/her and that they were published to a third party. Bear in mind that a statement is libelous if it can be proved to refer to the complainant, even if it does not actually name him/her.

Generally, someone who is held to have effective control over the content is held responsible for libel; responsibility falls squarely on the shoulders of authors, journal editors, and publishers.

Therefore it is essential that you as a journal editor are aware of what may constitute a libel. In our view, most potential risks can be overcome by sensitive language sub-editing at the submission stage, in co-operation with the author.

Journal editors should also make referees aware of the potential for libel in a manuscript review report, as “publication” can be defined as simply communicating something in writing (including email) to someone else.

Libel by juxtaposition

It is possible to libel a person or a company accidentally. For example, the juxtaposition of a company’s name or logo in one story, with text from another, may libel that company. Intention is irrelevant.

Common mistakes or excuses when accused of libel

These claims are not a defense against libel:

  • “That’s not what I meant.”
  • “But I didn’t name them.”
  • “But it’s true!”
  • “He’s not the John Smith I meant.”

Defenses against libel

Libel is a civil procedure rather than criminal, so the standard of proof is "on the balance of probabilities" rather than "beyond reasonable doubt." A statement is not libelous if it meets the requirements of one or more of the following defenses:

  1. Justification: truth is a defense if it can be proved with primary evidence or signed witness statements – all material allegations must be substantially true.
  2. Honest comment: for the words or statements to rely on honest comment, the following test must be passed:
    • The words are recognizable as comment (not facts).
    • Words are based on true facts, which must be explicitly or implicitly indicated.
    • They are on a subject which is in the public interest.
    • The comment must be honest in indicating the facts, but need not describe the facts to an extent which enables the reader to make his own judgment on whether the comment is substantiated (an honest expression of the commentator’s opinion).
  3. Qualified Privilege: applies where the publisher is under a legal, social, or moral duty to publish the statement to the recipients and the recipients must have a corresponding interest in receiving the statement. It also covers a reply to a verbal or written “attack” on someone's character, where the person “attacked” has a legitimate interest in defending himself and so long as the reply to the attack is relevant and proportionate to the original attack. This defense is often used in newspaper publishing and is difficult for scholarly publishers to rely on due to the longer lead time. Key points:
    • Always offer an opportunity to comment before publishing
    • Were you under a duty to publish?
    • Is it a reply to an attack?
    • Is publication in the public interest?
    • Is it necessary to include the defamatory statement?
    • Is the publication responsible and fair?
    • Is the report about the facts and not the truth of statements?

    The defense is lost if statements are adopted or fail to report a story in a fair and neutral way.

  4. Consent: that the person concerned consented to the publication is a full defense.
  5. Death: it is a complete defense that the person defamed is now dead.

You should bear in mind that malice will defeat the defense of qualified privilege or honest comment. Malice is defined as a dominant improper motive on the part of the publisher (or editor or author or referee) for publishing a statement and will be inferred if the publisher knows the statement is false or is reckless as to the truth of it.

Examples of things to look out for:

  • a defamatory statement (one which makes people think worse of someone)
  • a statement of hatred towards another person
  • a statement of ridicule towards another person
  • a statement of contempt towards another person
  • a statement which causes someone to be shunned or avoided
  • a statement which lowers the subject in the estimation of right-minded people
  • a statement which implies a lack of qualification, integrity, knowledge, skill, capacity, judgment, or efficiency to conduct business
  • an allegation that someone is dishonest
  • an allegation that someone is insolvent
  • an allegation that someone is corrupt
  • an allegation that someone associates with criminals
  • an allegation that someone has a reputation for doing something criminal or dishonest
  • accusing someone of bribery
  • presenting allegations as fact.

Although any claim for libel must usually be brought within one year of the date of publication, a new cause of action arises each time a libelous statement is published. This creates particular difficulties with online and archived publications because each time an article is read online or taken from an archive, a new cause of action arises, effectively circumventing the limitation period. The damage caused by online libelous publications is also likely to be far greater because of the wider publication and therefore, greater damage to reputation.

It is also worth remembering that libelous statements which damage commercial and business interests may result in libel claims being brought with large special damage claims and this is now more likely to apply in the academic and scientific arena. One reason for this is that academic publications are increasingly important in matters of patents, first discovery rights, grant awarding and research funding, and career progression. For these reasons, the scientific and academic world is likely to start seeing more litigation than the literary world.

In the matter of refereeing, if disclosure of a “paper trail” or “email trail” is requested under law, then having destroyed that trail before 12 months has elapsed may be questioned. For that reason we recommend that referee reports and peer-review correspondence is held in a secure, confidential archive for 12 months, before deleting, assuming you do not already use S1M or Editorial Manager peer-review management systems, in which case archiving is in-system.

Plagiarism

Plagiarism is a failure to acknowledge the source of an idea or quotation in the correct way, whether this is intentional or accidental. There are several different types of plagiarism:

  • An author might provide inaccurate or incomplete bibliographical information, making it impossible to find the sources they used.
  • An author might use a large amount of text from something else they have written, meaning that there is very little that is original in the new piece of work.
  • An author might fail to acknowledge that something is a quotation, even though they give the source.
  • An author might use someone else’s work entirely or fail to give credit to co-authors and researchers.

Sanctions

Where we find evidence of misconduct, we will apply sanctions. These range from issuing authors with a warning that they must be mindful of our publishing ethics and good practice, to the retraction of an article. A retraction is a notification of invalid results or a sanction applied to misconduct which is held to compromise the validity and reliability of a paper. Retractions with respect to the former are made when the conclusions of a paper are seriously undermined as a result of miscalculation or error. Retractions with respect to the latter are made when there has been an infringement of publishing ethics or a breach of author warranties, which can include breaches of third-party copyright.

All retracted articles are watermarked RETRACTED on the .pdf version (the .html is removed). A Statement of Retraction is published, explaining the reasons for retraction, noting that editors accepted the article in good faith, and that Taylor & Francis published the article on the basis of author warranties which were subsequently found to have been breached. All Statements of Retraction link to retracted articles, and are made FREE ACCESS on www.tandfonline.com

Retraction – or the rejection of an article in peer review which is found to breach our code of ethics – will also mean an author may be prohibited from making new submissions to Taylor & Francis journals for up to five years. We will always alert third parties whose rights have been infringed, and, at our discretion, we may also alert the author’s institution’s Office of Research Integrity (or functional equivalent) to the infringement.

We also make provision where we decide to issue an “Expression of Concern,” emanating when an article is the subject of an investigation, and the Expression is issued pending the outcome of the investigation. This is linked to the article in question.

Published: June 26, 2013 | Author: | Category: Uncategorized | Tagged with: