"The ESF ... considers that the statement cited above is slanderous"
October 13, 2014 3:30 AM   Subscribe

Last year, Dr. Amaya Moro-Martin, an astrophysicist specializing in circumstellar disks and planetary systems, started a great deal of discussion in the astronomy community when she wrote an open letter to the Spanish Prime Minister explaining that she was leaving Spain because of the bizarrely oppressive bureaucratic policies of the Spanish government and their broken promises to scientific researchers. This year, she has written an opinion piece in Nature arguing that Europe's drastic research budget cuts are short-sighted. In response, the European Science Foundation (ESF) has threatened to sue her unless she retracts the statement that called an evaluation process supported by ESF "flawed".
posted by kyrademon (21 comments total) 7 users marked this as a favorite
 
Apparently they are claiming that their process is flawless? Good luck with that.
posted by demiurge at 4:23 AM on October 13, 2014 [2 favorites]


Threatening litigation seems like a predictable response from an organization like the EU bureaucracy, which seems to prefer the least effective policies possible.
posted by nerdler at 4:31 AM on October 13, 2014 [2 favorites]


Actually, threatening litigation is so un-European I was wondering if an American were somehow involved. Anyway, they are claiming the process could not be flawed because they followed best practice, which is almost beyond parody in its feebleness.
posted by epo at 5:01 AM on October 13, 2014 [1 favorite]


Well that will certainly take care of that. Next on the agenda the Big Endians.
posted by localroger at 5:22 AM on October 13, 2014 [2 favorites]


Whoa, guy at the last link on the Retraction Watch article Godwinned right out of the gate. That's not slander, this is slander! </crocodiledundee>
posted by XMLicious at 5:33 AM on October 13, 2014


Stupid thing is stupid. But this is about the Portuguese lawsuit against the ESF: ESF can't allow that claim to go unchallenged in Nature lest it win Portugal its case.

But saying "it's flawed because nothing is perfect" is kind of equivocating: we expect "flawed" to indicate the existence of specific, known, and fixable flaws. Otherwise it's like pointing to a book and saying: "there's a typo on there." Sure, but where? And why single out that book?

The fact that she doesn't list specific flaws in the process may be some evidence that her claim is bogus. The flaw is that the funding was restricted at all, not in the way that restricted funding was distributed. As Europe attaches more funding to non-transparent administrative decisions, we shouldn't be surprised that it becomes more litigious. In this case the litigation isn't merely frivolous: it's about the future of science and austerity.
posted by anotherpanacea at 5:34 AM on October 13, 2014


But saying "it's flawed because nothing is perfect" is kind of equivocating: we expect "flawed" to indicate the existence of specific, known, and fixable flaws.

No we don't. We certainly don't expect it to imply that the flaws are fixable.

The letter they sent is very weird, since it really does specifically refute the claim that their process is flawed, which can only mean that they are, for realsies, asserting that their decision-making method is flawless. I guess this means Ken Arrow will have to give back his ~Nobel.

A less stupid letter might have attacked the causal connection between their decision-making process and closing half the research units in Portugal.
posted by ROU_Xenophobe at 5:47 AM on October 13, 2014 [2 favorites]


Was that letter actually written by anyone with legal expertise? I'd always thought printed statements were libellous, not slanderous. Portugal seems only to have a general defamation statute (with some crazy sounding jail time for defaming "an authority") so it may be a translation error, I guess. But given that Nature is a UK publication, I don't know if Portugese law has primacy. Either way, a nasty case of bullying and perhaps inept into the bargain.
posted by cromagnon at 5:51 AM on October 13, 2014 [1 favorite]


The flaw is that the funding was restricted at all, not in the way that restricted funding was distributed. As Europe attaches more funding to non-transparent administrative decisions, we shouldn't be surprised that it becomes more litigious.
Yes. As one of the commenters over at Nature observes, as the individual slices of the research-funding cake get smaller, the more resources will go into determining who gets them. More and more funding, then, will go into administration and bureaucratic oversight, rather than research. The perverse incentive to focus on paperwork and surveillance rather than, well, work will only ramify as the resource pool gets smaller. Each university and research centre will have to employ its own administrators to increase the chances of a successful bid. There will be bid writers and editors; project managers; "research support teams." The individual scientists lucky enough to have attached positions will have to spend more and more time attending to paperwork—and the endless queries they'll get from the research bureaucracy employed ostensibly to increase their chances of success—than science. This process is, of course, well underway. Eventually, following this form of "best practice," we'll have an all-administration R & D sector and that'll be just great.

It'll be like the Shoe Event Horizon, except with academic administrators.
posted by Sonny Jim at 6:02 AM on October 13, 2014 [8 favorites]


Otherwise it's like pointing to a book and saying: "there's a typo on there." Sure, but where?

Obviously there might be unjust legal regimes where this isn't true, but surely it's the plaintiff's job to show that the claim they assert to be defamatory is (at least probably) false. So if you're suing someone because of their claim that there's a typo in your book, your first job is to show that the book is (at least probably) free of typographical errors. If it were in the US, which it isn't, it's hard to imagine the organization not being classed as a public figure and so requiring them to demonstrate actual malice instead of mere falsehood.

And why single out that book?

How is that relevant to anything? Under any sane legal regime, I can make true statements (meow meow false light meow) about anyone I want to for any reason I want to. Including personal spite, created by anything under the sun. Maybe I hate you because you kicked my dog, or because you jilted me at the altar, or because you have a moustache. Doesn't matter if my statements about you are truthful.
posted by ROU_Xenophobe at 6:03 AM on October 13, 2014 [1 favorite]


Nature is based in England and England has some particularly weird libel laws, so I would be wary of extrapolating how libel "should" work.
posted by kiltedtaco at 6:16 AM on October 13, 2014


'Not flawed' ≠ 'Flawless'. English is not propositional calculus (to put it mildly).
posted by Segundus at 6:22 AM on October 13, 2014


London is the libel capital of the world, so good luck to her if she is being sued there, as the rules changed recently, and it made it easier for the suing party to win.
posted by marienbad at 6:56 AM on October 13, 2014


I read her letter and given the present climate in Spain, I am not at all surprised at her leaving. Having lived there for about 18 years, there are lots of wonderful things about Spain. Their Byzantine-style bureaucracy is not one of those wonderful things. I, too, went through their degree convalidation process (without success). She will be one of several Spanish scientists that have come to the USA to do their work (Ochoa, being the most famous) and I hope she will have great success because, for the time being at least, we seem to support our scientists and their endeavors.
posted by McMillan's Other Wife at 7:00 AM on October 13, 2014


So, she can just find-and-replace the word "flawed" with "inadequate" and we're all square, then? This seems like an incredibly wasteful argument about syntax, although that's never stopped a legal battle before. But I am curious about the Portuguese/ESF lawsuit anotherpanacea mentions, and can't find much else about it at the moment.

It seems kind of strange to read all of Moro-Martin's admonishment of the privatization and bureaucratization of scientific research and pick this clause to say "Hey! Our evaluation processes aren't flawed, they're poorly-designed. Get it right."

> She will be one of several Spanish scientists that have come to the USA to do their work [...] and I hope she will have great success because, for the time being at least, we seem to support our scientists and their endeavors.

Thanks for the laugh. Albeit unintentionally, you've brightened my otherwise sickened mood.

A less bitter, more jovial response might have been "#NotAllScientists," but I wasn't feeling it right then.
posted by Johann Georg Faust at 7:44 AM on October 13, 2014 [1 favorite]


The ESF is currently defending itself against legal efforts to undermine its legitimacy and the legitimacy of its review process.

Allowing Nature to print that its process is "flawed" in respect to that lawsuit and that process is like allowing the New York Times to print that Trayvon Martin was the aggressor against Zimmerman during Zimmerman's trial. It's unjustified by facts in evidence and pretty obviously prejudicial to an ongoing legal proceeding. Even in the US, you'd have a good case for libel in such an instance (although I think you'd be foolish to try it unless you were also the underdog.)

Generally speaking, of course, libel lawsuits are stupid. And European austerity is the real culprit here, so I'm glad that someone is taking that on, or trying to. But Moro-Martin decided to take a swipe at ESF in the process, which really doesn't solve the problem that there's not enough money to go around until the various nation-states get their act together. Unless she can produce evidence of these flaws and biases, she's literally distracted her readers from the important issues of austerity!

If there's going to be austerity, this is what it's going to look like: a lot of marginal research is going to get shuttered. Now more will be shuttered because Portugal would rather the ESF spend money on lawyers than researchers, if it means that they'll have a shot at a bigger piece of that smaller pie.

TLDR: this isn't your average SLAPP suit, so your generic anti-libel arguments aren't applicable.
posted by anotherpanacea at 8:05 AM on October 13, 2014 [1 favorite]


That they are suing in the first place, regardless of the bureaucratic justification, wrecks their scientific credibility more than anything. Attacking one of the most prominent research publication's freedom to express opinion is basically an own goal if you're trying to demonstrate scientific integrity.
posted by Zalzidrax at 8:15 AM on October 13, 2014 [1 favorite]


The ESF is currently defending itself against legal efforts to undermine its legitimacy and the legitimacy of its review process.

That's ESF's problem. Nothing in Moro-Martin's editorial mentions any such lawsuit.

Allowing Nature to print that its process is "flawed" in respect to that lawsuit and that process is like allowing the New York Times to print that Trayvon Martin was the aggressor against Zimmerman during Zimmerman's trial. It's unjustified by facts in evidence and pretty obviously prejudicial to an ongoing legal proceeding.

That's just... wow.

First, legal integrity doesn't require everyone everywhere to never publish anything that might influence someone involved in the trial. It requires the people involved in the trial not to read things that might prejudice them... except when it doesn't, as in legal systems where ~anyone is free to submit an amicus brief.

Second, the example you offered is just silly; saying truthfully that a process is flawed is not at all like saying falsely that Martin was the aggressor.

Even in the US, you'd have a good case for libel in such an instance

In the US, the ESF would with virtual certainty be treated as a public figure rather than a private person and would have to show actual malice. This means that the only realistic way they could secure a decision in their favor would be if they could uncover a document trail that said "You know what, guys? It turns out that the ESF's mechanism to award grants isn't flawed after all. But fuck it, let's publish that it is anyway."
posted by ROU_Xenophobe at 8:36 AM on October 13, 2014 [1 favorite]


legal integrity doesn't require everyone everywhere to never publish anything that might influence someone involved in the trial

A piece in one of the pre-eminent scientific journals isn't just a blog post or a Youtube comment. This is a supposedly peer-reviewed piece of evidence, despite the absence of proof. If I were Portugal I'd enter it into the record or call her to testify. They could just toss this off as a part of the list of supportive articles claiming that Portugal's process is flawed. "Look at all these reports of bias! Look, Nature says the process was biased! Physics World too!"

saying truthfully that a process is flawed

Yawn. Equivocate all you like: you are flawed and your argument is flawed. What? It's true, almost tautologically. All of that applies to me, too. But the contested claims is this:

Portugal may now have to close half of its research units because of a flawed evaluation process supported by the European Science Foundation.

Read it like you're not a lawyer for a second. That sentence claims that the cuts are due to the flaw: "because of." That the "flawed evaluation process" caused the cuts. And that's almost certainly false: the problem isn't the evaluation process, it's the quotas for how many labs can be funded and by how much. FCT told ESF to cut funding by 50%; ESF came up with a process to do that. Blame FCT for that, not ESF.

Look, here is one account of the specific flaws. Here is another, from Nature again. It looks pretty obvious, even to the critics, that the quotas are the problem. There's a context here that you're ignoring.

...the only realistic way they could secure a decision in their favor would be...

Libel in the US is a tort, not a crime, which means the jury would be asked to apply a preponderance standard. It'd be pretty easy to show that it's more likely than not that: a. Moro-Martin knew that potential flaws did not cause the cuts, b. knew that the op-ed would be prejudicial to the case and thus potentially harmful to the ESF's chances of winning. In the US, the ESF could send the C&D, then wait to see if they lost the Portugal case, and if they did they'd have a pretty good case for serious damages. Again: that's a terrible thing to do and libel cases make everyone look bad. But they could win.

Since she indicates the real problem is not the flawed review but the overall funding environment, the op-ed itself is sufficient evidence that she had knowledge the information is false, at least in the absence of some exculpatory ignorance or recklessness on her behalf. Logic, not a paper trail, would be enough to tip the preponderance against her. This is the very definition of academic, though, since the case would happen in Britain where the laws, and the odds, are stacked against her.

As I've said, though, I generally favor Moro-Martin in this argument with EU research funding totals, I just think she's wrong about the funding mechanisms.
posted by anotherpanacea at 9:49 AM on October 13, 2014


A piece in one of the pre-eminent scientific journals isn't just a blog post or a Youtube comment. This is a supposedly peer-reviewed piece of evidence, despite the absence of proof.

It's an editorial letter, for God's sake. It is explicitly labeled as opinion. To assert that it purports in any way to be peer-reviewed science is as silly as asserting that a book review appearing in Nature purports to be peer-reviewed science.

Read it like you're not a lawyer for a second. That sentence claims that the cuts are due to the flaw:

Which would be the good argument to make in a demand letter, as I noted earlier in this very thread!

But the ESF didn't attack the probably-false causal claim. Instead, they really did say that their decision process does not have any flaws...

Which is why they, or at least their advocates, look like a bunch of mindless idiots to me, in addition to looking like abusive goons.

There's a context here that you're ignoring.

None of which is present in the offending piece. Are you seriously suggesting that I should be able to collect damages from you for defamation because of what some other people said about me?

Libel in the US is a tort, not a crime, which means the jury would be asked to apply a preponderance standard.

If it got to a jury, and the jury were asked to determine whether or not actual malice existed. I'd expect it to be dismissed by a judge long before that. In any case, I think you simply don't understand how extraordinarily difficult the US actual-malice test for public figures is.
posted by ROU_Xenophobe at 10:38 AM on October 13, 2014


...silly...mindless idiots...simply don't understand....

Thank you for lining up all the sneers in one place so I'll know where to look for them, later.

Do you have anything beyond derision to add? Because it seems like you don't actually have any independent knowledge about the case, US libel law, or the ESF. But you've got a general know-it-all tone, so that probably serves you just as well in most situations. Too bad about the exceptions, though.

Just one example (a nice "are you serious?"):

Are you seriously suggesting that I should be able to collect damages from you for defamation because of what some other people said about me?

In fact, yes: in the US, libel requires that written defamation be actually harmful. So it's not libelous to call you a bastard if no believes you were born to an unmarried mother. But it is libelous to do so if there's a real chance people will believe it. In that situation, you stand a chance of actually demonstrating damages.

One more! If the editorial is not peer reviewed, it loses the protection of the 2013 Defamation Act reforms.
posted by anotherpanacea at 1:50 PM on October 13, 2014


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