33 Comments

1. The above post demonstrates fatal failures of rational thought, as well as deep moral negligence.

   But not on Geoff’s part.

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2. Et tu, Oxford? Has the venerable bovine river crossing become little more than an English Harvard? Then we are truly witnesses to the Coma of Reason.

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3. Brad Keyes says: 24 Feb 18 at 3:23 am
   “Et tu, Oxford?” I was of opine that British constructed ‘bridges’ for oxen to trundle their load! In US Boston; not so much! Was James Comey (FBI) capable of ‘reason’? 🙂

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4. Geoff. Won’t you have to prove you have been harmed by the publication of an article that you say defames you by referring to a retracted “research paper” that allegedly defamed you (but such defamation was never officially acknowledged)? The questions also will presumably be asked 1. How much have you been actually been harmed? A shyster lawyer might even argue that you have exploited the situation in your writings and therefore have benefited, and 2. Why have you not sued the authors?

   Does Oxford University Press’s charitable status apply to its digital products, especially if they claim this is based in New York but administered from the Helmholtz Centre for Environmental Research in Germany?

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5. A better argument.. is that is crap, show how the work is crap (which you have mentioned) and ask why do they want the crap in their publication? (And the ethics issues)

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6. Barry. You know it’s crap, I know it’s crap, Uncle Tom Cobly knows it’s crap but the paper’s academic reviewer (a certain Dr. (Professor) NO perhaps) doesn’t know it’s crap.

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7. Years back I updated Lewandowsky’s wiki page regarding the incident. My text was soon changed and padded to be more sympathetic to Lewandowsky’s position. But surprisingly some survives, as far as I recall below current passage (as of today, 24th Feb) was part of my text:

   ‘After media reports about this retraction, the journal’s Editorial Director Costanza Zucca and Executive Editor Fred Fenter made a joint statement on the journal’s blog that “Frontiers did not ‘cave in to threats’; in fact, Frontiers received no threats.” The statement said that the main reason for retraction was insufficient protection for the rights of the studied subjects.’

   In these days of political correctness, the issue of ethical failure may make an impact, if per above suggestion the line of argument about harm is not strong enough. It also means the onus would be on OUP to demonstrate the paper was ethically produced rather than on you to demonstrate harm.

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8. Might MarkH proffer an informed opinion (pro bono naturally)?

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9. Lewandowsky and his co-authors broke the ethics approval (such that it was) for Recursive Fury, and tainted the responses by their actions… That Recurrent Fury, gets other people to collect the same tainted response independent of Cook/Marriott ‘collecting’ them. Does not mean that Recurrent Fury is still not ethically compromised. The pot was still stirred, the ants nest poked..

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10. Geoff (and Alan Kendall) – I regret I’m not in a position to advise. I’m retired, so as well as being out of date (the Defamation Act 2013 was passed after I retired), I no longer have a practising certificate or indemnity insurance – all of which precludes me from offering advice. I could get into trouble with my professional body if I purported to do so. Add to that the fact that I know next to nothing of US law, and I’m not an appropriate person to get involved.

    Observations from me (observations, not advice!) are that in UK law “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” [Section 1(1) of the Act of 2013].

    I also note that section section 6 (1) offers a special defence, potentially of relevance in this case:

    “The publication of a statement in a scientific or academic journal (whether published in electronic form or otherwise) is privileged if the following conditions are met.”

    The conditions that have to be met, and the context of the defence are set out in section 6, which can be found here:

    http://www.legislation.gov.uk/ukpga/2013/26/section/6/enacted

    But of course none of the above is US law. So far as US law goes, I strongly suspect that any actual litigation could be horrendously expensive. On the other side, I believe that damages over there tend to be much higher than here (which might concern OUP if the defamation claim is persisted with further), but I certainly don’t know that for certain.

    Sorry not to be of more help.

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11. On a more positive note, Andy West’s suggestion in the third paragraph of his observation looks a useful second line of argument if defamation is a non-starter. OUP probably don’t want a protracted argument about this, and probably don’t want their ethics and standards to be called into question. At the moment they seem to be adopting the standard tactic of fobbing you off, but if you become persistent and a nuisance who takes up a lot of their time, they may go for the line of least resistance and then withdraw the article. Just a thought (though Andy West, rather than me, should be credited with the thought).

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12. Hi Geoff – re your request “Are there any lawyers out there who can advise me”
    if you have not done so already I would post it/comment at Lucia’s blog “the blackboard”

    it often has US ex lawyers chipping in on comments.

    good luck mate 🙂

    2http://rankexploits.com/musings/

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13. As I mentioned earlier the OUP is part of a charity (something like 30% of profits go to the University). This presumably means that the University will also be loath to become embroiled in an ethical failure case (especially if they are deliberately dragged into it) and their income might be threatened.

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14. Reflecting on it overnight, it occurred to me that section 6 of the Defamation Act 2013 potentially gives scientific journals and authors appearing in them a get-out-of-jail free card, given the difficulty of demonstrating that someone has acted with malice. Section 6 in its entirety looks like this:

    “Peer-reviewed statement in scientific or academic journal etc
    (1)The publication of a statement in a scientific or academic journal (whether published in electronic form or otherwise) is privileged if the following conditions are met.
    (2)The first condition is that the statement relates to a scientific or academic matter.
    (3)The second condition is that before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by—
    (a)the editor of the journal, and
    (b)one or more persons with expertise in the scientific or academic matter concerned.
    (4)Where the publication of a statement in a scientific or academic journal is privileged by virtue of subsection (1), the publication in the same journal of any assessment of the statement’s scientific or academic merit is also privileged if—
    (a)the assessment was written by one or more of the persons who carried out the independent review of the statement; and
    (b)the assessment was written in the course of that review.
    (5)Where the publication of a statement or assessment is privileged by virtue of this section, the publication of a fair and accurate copy of, extract from or summary of the statement or assessment is also privileged.
    (6)A publication is not privileged by virtue of this section if it is shown to be made with malice.
    (7)Nothing in this section is to be construed—
    (a)as protecting the publication of matter the publication of which is prohibited by law;
    (b)as limiting any privilege subsisting apart from this section.
    (8)The reference in subsection (3)(a) to “the editor of the journal” is to be read, in the case of a journal with more than one editor, as a reference to the editor or editors who were responsible for deciding to publish the statement concerned.”

    If I find time, I might try to see if the Act was passed as a result of a Law Commission report on defamation, and/or to see if Hansard for the Parliamentary debates around its passing are available on-line. I would like more information on how this nearly free pass came to be passed into Act of Parliament.

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15. Thanks for all the comments. It’s pretty clear that legal action is out of the question. I used it as an argument because it was the only thing that made New Frontiers sit up and take notice, leading to the retraction of “Recursive Fury.” (I should have done exactly the same thing with the publishers of “Recurrent Fury,” but I couldn’t be bothered.)

    I can’t find any reference to ethical standards at the OUP Encyclopaedia site. It’s Peer Review all the way down. A standard which is arguably useful for filtering what counts as “the Science” gets used to define what counts as acceptable attitudes to the Science, what’s the proper way of assessing acceptable attitudes to the Science, and who is allowed to decide what’s the proper way of assessing acceptable attitudes to the Science. By publishing Lewandowsky and Cook, the OUP is officially endorsing Climate Science as a millennial cult. A quick look at their list of articles confirms that there’s hardly any science there, just an awful lot of Communication.

    The site of the OUP Encyclopaedia of Climate Science is no more an encyclopaedia than a building site is a building. And a building site which is currently being squatted by a bunch of down and outs with delusional beliefs. Best to treat it as just another one of those posh blogs with no comments where nobody goes.

    I’m not convinced by the argument of Andy West and Mark Hodgson. Reading my letters and replying that they take them seriously doesn’t take up much time, and being a nuisance is just that – a nuisance.

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16. In March 2011 the Ministry of Justice carried out a consultation on the then draft Defamation Bill. From the Executive Summary:

    “The Coalition Agreement indicates that measures to reverse the erosion of civil liberties and roll back state intrusion will include “The review of libel laws to protect freedom of speech”. A range of concerns have been raised about the detrimental effects that the current law on libel is having on freedom of
    expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism, and the extent to which this jurisdiction has become a magnet for libel claimants.
    Three main reports have been published over the past 18 months in the context of debate on these issues: a report by English PEN and Index on Censorship, “Free Speech is Not for Sale”, was published in November 2009; a Libel Working Group set up by the Ministry of Justice which included media and claimant lawyers, academics, representatives from those campaigning for libel reform, and the scientific community published its report on 23 March 2010; and the Culture Media and Sport Select Committee published the report of its enquiry on press standards, privacy and libel on 24 February 2010.
    Subsequently Lord Lester introduced a Private Member’s Bill in the new Parliament, and this received Second Reading on 9 July 2010.
    The Government has taken the recommendations in all these reports and the contents of Lord Lester’s Bill into account in formulating the provisions in the draft Bill and this consultation paper. We have also carried out informalconsultation with a range of interested parties including non-governmental
    organisations; the media and publishing industry; the legal profession; internet-based organisations; and representatives of the scientific community. ”

    Anyone interested can dig further here:

    Click to access draft-defamation-bill-consultation.pdf

    Next step is to read the report published by the scientific community on 23rd March 2010, which appears to have been influential in the drafting of the section defence.

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17. I’m boring myself now, but here’s the alternative point of view (i.e. why the Defamation Act 2013 was a reform too far) if anyone’s interested:

    Click to access Mullis_Scott_Something-rotten-in-the-state-of-English-libel-law_2009.pdf

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18. Geoff Chambers – regarding your comment at 9.06 a.m. I sympathise with your dilemma.

    This whole area is a minefield. I passionately believe in freedom of speech and deprecate attempts to close down debate. I recognise that occasionally freedom of speech has to be qualified, for the greater good of society, but I also believe that someone whose reputation is maligned should have recourse through the Courts. Michael Mann certainly seems to think so too.

    I can see both sides of the argument regarding the section 6 defence. I’m still trying to work out where I stand on it – not that helps you any.

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19. MARK HODGSON (25 Feb 18 at 8:59 am)
    Many thanks for your efforts. I don’t think the content of Recursive or Recurrent Fury is protected by this law, because of the first condition:

    “The first condition is that the statement relates to a scientific or academic matter.”

    It’s difficult to see how analysis of casual comments on a blog can be defined as a “scientific or academic matter.” If that were to be the case, then any comment on anything could be considered a scientific or academic matter provided it fulfilled the other conditions of “independent review of the statement’s scientific or academic merit carried out by the editor of the journal, and one or more persons with expertise in the scientific or academic matter concerned.” “Nice day today” becomes a scientific matter if I get it approved by the editor of Cliscep and one or more colleagues with expertise in nice days.

    Of course, arguing the case that “the matter” of Recursive Fury is not scientific would be complicated, as most legal arguments are.

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20. Geoff. I think you would be on a hiding to nothing with that argument. The court would surely accept that the paper was scientific simply because it is based upon (and cites) numerous papers published in scientific journals. You would have to establish that all were unscientific and that all editors and reviewers were mistaken – a near impossible task I would judge.

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21. It has occurred to me that the article you are contesting cites the “retracted” Lew etal 2013 paper and admits that the 2015 paper is a reissuing of it with links to the data removed. This suggests that the authors of the OUP article, by citing the 2013 paper are still treating it as a viable paper still available to be consulted and quoted from. They are not treating it as a retracted paper and expect the outside world to have access to it.
    Perhaps this might be a more profitable route. Sue the authors of the 2 013 and 2015 papers, and warn OUP that if you are doing so and if successful they will be embarrassed to have have under their imprint an article based entirely upon suspect papers. There is no way the OUP won’t be adversely affected since their publication would constitute the main reason for your actions. If you could get the others smeared in the 2013 paper to threaten to take similar actions in their own jurisdictions, so much the better.

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22. Interesting line in the legislation:

    A publication is not privileged by virtue of this section if it is shown to be made with malice.

    This and the question ‘but is it science?’ don’t need to be made in court. A great deal which seems to be science isn’t at all. And much ‘research’ seems to be driven by political ambition rather than desire for understanding. The frustration and impatience so obvious to us in Lew et al’s work only has a fig leaf concealing the malice from others, who expect academic work to be of sounder stuff. That’s the advantage seemingly respectable institutions have over independent writers — their critics.

    In other words, whether in or outside of court, Lew and his publishers believe their privilege means they have nothing to answer for, no matter what the criticism. This to me seems to be a departure from at least the spirit of the academy since the Enlightenment — a regression, which undermines its foundations. Pointing it out will take time, precision, and collaboration. It probably won’t win any damages, but it would cost or risk less of your own resources, and could ultimately be more devastating than a settlement or win.

    There is so much dross, and so many pseuds in academia, what we have seen of it can only be a tiny part. If academic institutions (including publishers) continue to refuse point blank to address it, the problem will become more obvious until it becomes critical. Arguably, it is already at that stage of crisis: the academy is top-heavy, off-balance and out of control machine.

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23. I found it very disappointing that, so far as I can see, “scientific or academic matter” is a phrase that is not defined in the Act. It will therefore, in time, fall to be interpreted by the judiciary. I fear anybody seeking to argue that something appearing in what purports to be a scientific or academic journal is not a scientific or academic matter will face an uphill struggle – though not necessarily an impossible one.

    Section 4 of the Act might also be an issue, however –

    “Publication on matter of public interest
    (1)It is a defence to an action for defamation for the defendant to show that—
    (a)the statement complained of was, or formed part of, a statement on a matter of public interest; and
    (b)the defendant reasonably believed that publishing the statement complained of was in the public interest.
    (2)Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
    (3)If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
    (4)In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
    (5)For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.”

    Arguing that the article complained of relates to a matter of public interest would be a useful second line of defence. That’s not to say that the argument would succeed, but the claimant would probably again face an uphill struggle – I suspect that’s just the way things are. Don’t forget the framers of the Act made it quite clear that their aim was to reduce the number of successful libel claims and to make it easier to publish without fear of litigation (I paraphrase, but I think I can safely say that was the gist of the intent behind the Act).

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24. Thanks everyone for some very useful comments. You can see in my letter to OUP that I invite them to read the below-the-line comments hoping they’d be constructive, and they have been.

    The problem is of course the papers, and not the authors, and behind the papers the kind of corruption of an ideal of academic behaviour, or of behaviour tout court.This is maybe naïve on my part. OUP are in the business of flogging their stuff, but somehow I don’t expect them, or Bristol University, or the BBC or the Guardian to reply to my complaints like a market trader who’s sold me a dud watch. Perhaps all this demonstrates is my prejudices about market traders.

    ALAN KENDALL (25 Feb 18 at 12:58 pm)
    This is the main point I wanted to make; that citing a retracted paper is misconduct, and anyone with an ounce of intelligence and half an hour to spare can see that the other two papers are total rubbish. Making it too directly points out the gross negligence of peer reviewers and editors, which is bad tactics, so I concentrated on the defamation angle, which doesn’t directly accuse OUP of being idiots, and obliges them to consult a legal expert.

    There’s no question of taking legal action because there’s no way I can accuse Lew of having ruined my reputation, or even my day. A careful reading of my collected Lewandowskiana will reveal that I quite enjoy insulting him, knowing that we’re right and he’s wrong, and he knows it. I’d just like OUP and Bristol University to know it too, then someone can have a quiet word with the great man, and he can retract his two papers and go back to being a normal university professor.

    MARK HODGSON (25 Feb 18 at 6:49 pm)
    Sorry our comments have crossed, so I haven’t replied to all the interesting points you make.
    Of course I’ve never doubted that the subjects Lewandowsky treats are matters of public interest and that it was reasonable for him to believe that publishing his articles was in the public interest. His views are obviously of great interest, since they’re quoted everywhere from Parliamentary Commissions to this month’s Teen Vogue.

    My interest in the legal route was always inspired by the Justice Burton finding in the case against Al Gore’s film. Here was a judge doing what one always imagines a judge is supposed to do: spend an enormous number of hours and pages establishing the truth about highly detailed material. No-one else can do that, not editors or journalists or academics. Al Gore’s reputation got a serious bashing, not because we sceptics didn’t like his film, but because what Al said didn’t correspond to what the IPCC said, and a judge went to the trouble of spelling it out. (The following week Al and the IPCC shared a Nobel Prize and Justice Burton was forgotten, but still…) And no-one had their freedom of speech curtailed.

    It’s interesting to speculate what would have had happened if Lewandowsky had published his views on sceptics in a newspaper. The editor would certainly have taken a lot more notice of complaints. Our few successes have been where a volley of sensible complaints (three quarters of them by Barry Woods) have got past the moderators at on-line journals which published Lewandowsky without being aware of his sulphurous reputation. Lew can’t do in the Sun (or even the Guardian) what he can do with no problem at OUP or in the peer-reviewed scientific journals.
    Which supports Ben’s point above about academia.

    Anyone here read Teen Vogue?

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25. “Anyone here read Teen Vogue?”

    When I’m in the “office” I prefer Readers Digest but if unavailable an old telephone book will do do.

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26. I asked my granddaughter about Teen Vogue and she crossed her fingers and got out the garlic.

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27. “A publication is not privileged by virtue of this section if it is shown to be made with malice.”

    There goes a certain rich white male’s privilege. Blind Freddy could see the malice, in the ordinary sense, that pervades Lewandowsky’s oeuvre, both peer-reviewed and YouTubed. It would be a short step from there to demonstrate the malice, in the legal sense, with which LOG12, Retractive et hoc genus omne were published. (“Short” in geological terms, at least; how long it would take and how much it would cost take to satisfy a judge, I can’t begin to guess.)

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28. Mark,

    “I also believe that someone whose reputation is maligned should have recourse through the Courts.”

    So do I.

    “Michael Mann certainly seems to think so too. ”

    Well. to be exact, Michael Mann certainly seems to think Michael Mann should have recourse through the Courts.

    I suspect he’d rapidly convert to Free Speech Fundamentalism if Steve McIntyre ever decided to get litigious about the libels Michael Mann has lobbed in his direction. (“Pure scientific fraud,” anyone?) Recourse for me but not for thee!

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29. Geoff, at least you got a reply, of sorts. I tried to complain to OUP about the unethical and and defamatory Harvey et al, which falsely smeared Susan Crockford, Anthony Watts as “deniers”, and similarly many others (Ridley, Lomborg etc) in the SI.

    Here is the OUP policy, which is clearly violated by Harvey et al:

    “Whilst striving to promote freedom of expression wherever possible, OUP aims to avoid publishing anything that harms the reputation of an individual, business, group, or organization unless it can be proven to be true. We take all possible measures to ensure that published work is free of any text that is, or may be considered to be libellous, slanderous, or defamatory.”

    At the policy page linked, there is no indication of who to report any ethical issues to. So I wrote to a few email addresses associated with OUP, asking the simple question:

    “Please could you tell me who the appropriate contact is to report a serious breach of the OUP ethics policy?”

    Not one of them answered this simple question.

    From one email account I received the following, which uses similar language to the reply you got.

    “Thank you for getting in touch. Oxford University Press and BioScience journal take issues of defamation very seriously. We have been made aware of these accusations and are investigating with the highest priority.”

    It was unsigned and my original question remained unanswered. That was on Dec 7th, so “highest priority” appears to mean something different at OUP than elsewhere on the planet.

    Another email account told me at about the same date (and this one did have a name attached)

    “Your information is being reviewed internally. I will contact you again once I receive an update.”

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30. PAUL MATTHEWS
    Many thanks for the link to the OUP’s ethics policy.

    OUP is a member of the Committee on Publication Ethics (COPE) (http://publicationethics.org/) and adheres to the COPE Code of Conduct for Journal Publishers. We encourage journal editors to follow the COPE Code of Conduct for Journal Editors and to refer reviewers to the COPE Ethical Guidelines for Peer Reviewers as appropriate. Allegations of misconduct will be investigated in accordance with the COPE Best Practice Guidelines as far as is practicable. If notified of a potential breach of publication ethics, we encourage journal editors and staff to inform their OUP contact as soon as possible. OUP staff are trained on how to proceed with investigations into allegations of ethical misconduct and will seek legal counsel when necessary.

    That’s three codes of conduct and a list of best practice guidelines they adhere to! It’s lucky their staff are trained.

    I note from the briefest glance at the Ethical Guidelines for Peer Reviewers that they will have read the manuscript and the supplemental data, and will therefore be aware that the headline claim of one paper is based on less than two percent of respondents, and that the data for the other two papers is either distorted, censored, misattributed, or entirely made up. I wonder if they told the editors?

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31. Paul. Could it be that your communications, together with others of a similar ilk, are at this very moment being collected, collated and analysed with sophisticated statistics (and statistical sophistry) by persons unknown for publications of great moral worth to become incorporated in the peon of psychological research? You should be so very, very proud. I know I am, and all we do is exchange electrons. Think of it this way, the noble OUP is assembling new bibles to spread the WORD. It is a great privilege to add to this font of knowledge and understanding. You don’t want to be considered an iconoclast do you and shunned by decent society?

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32. Paul,

    I hope you saw (and took some cheap pleasure in) the recent thread at scienceblogs, I think it was, wherein our friend Jeff became polite and rational all of a sudden for no other reason than that I’d “drawn [his] public statements to the attention of [his] superiors.”

    What a rara avis is our Dr Harvey.

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33. Did you see Harvey’s comment that to be accused of carrying out academic rape was appalling because 4 of his coauthors were women, “including two in their twenties.”

    https://twitter.com/shubclimate/status/959169647009509376

    :insert RFL similey:

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