Commentary on a case involving the limit of critical review in scientific writing

Below, we present the opinion on a case involving the limit of critical review in scientific writing given by Ireneusz C. Kamiński, HFHR legal expert.

‘Legal disputes between academics regarding their work happen very rarely, and if they do occur, their focus is usually on copyright issues. Still, the assessment of the applied methods of analysis and the quality of the research or scientific publications is the basic and most common element of the academic and scientific reality. Science and progress wouldn’t be possible without critical review. Criticism must be addressed with the force of rational argument. Therefore, it’s surprising whenever a critical review of the research work is brought to court and the critic is accused of damaging the good name of the author or defamation of the latter’s character. Courts cannot assume the role of a review panel.

Despite this, from time to time, ‘scientific complaints’ find their way to the judicial system. In the end, it is an individual’s right to sue or bring a private accusation, not matter how unfounded or unreasonable it may be. In such a case, the court is under the obligation to settle a dispute. Yet, it may also take this as an opportunity to formulate a general, forward-looking principle (legal standard), which would specify in what circumstances, if at all, one may seek a relief in judicial process. Laying down such a general rule, for instance in the form of an explicit legal defence, would save the courts’ time and the taxpayers money spent on such proceedings.

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A dispute between academics on the quality of the research shouldn’t be, as a rule, resolved in litigation. Scientific criticism is a permanent feature of scientific activity. If so, give the Academia what belongs to the Academia. Still, the courts have to identify a corresponding legal standard. They have two ways to do this. They may take either a weak or strong approach, both of which lead to the discontinuation of the proceedings on grounds of no offence being identified. The weak approach would be where a critical review is qualified as expression of an assessment, which, generally, cannot be considered as an offence falling under Article 212 of the Criminal Code. In such a case, the injured party could rely on Article 216 of the Code, provided that the assessment satisfied criteria of defamation of character, a rare situation as it is. Personally, I would prefer courts to take the strong approach, namely the one based on an unambiguously identified legal defence of a statement and critical scientific review. This measure would have the result of preventing submitting to courts any questions, which should be reserved for a scientific seminar discussion.