Today In Unusually Stupid Legal Threats: You Can't Write About Me Because of Your Blog's Name!

Some legal threats are so very foolish that they prompt me to look around suspiciously, wondering if I am being punked.

Take this one: a researcher thinks that that he can bring civil and criminal charges against the proprietors of a web site for their report about him, even though he concedes the report was true, because of the web site's name.

The chemist in question is Dr. Ariel Fernandez, a researcher, pharmaceutical consultant, and Vice President and Chief Scientific Officer of a pharmaceutical start-up. His impressive qualifications include a broad field of scientific interest, a PhD from Yale in chemical physics, and numerous accolades and publications. He also has no grasp whatsoever of free speech or defamation law, and no apparent interest in learning — at least not the easy way.

The web site in question is Retraction Watch. I recently discussed other foolish threats made against them, and discussed their mission: offering a "window on the scientific process" by which scientific articles are criticized, retracted, or modified.

Last week Retraction Watch reported that one of Dr. Fernandez' publications — “Subfunctionalization reduces the fitness cost of gene duplication in humans by buffering dosage imbalances" — had been the subject of an "expression of concern." In the community of scientific journals, an "expression of concern" is viewed as an alternative to a retraction when there are doubts about an article a journal has published.

Retraction Watch titled its post "“Conflicting investigations” prompt expression of concern in BMC Genomics." The text of the post twice identifies the response in question as an expression of concern. The post links to the expression of concern, which is prominently labeled as an expression of concern. The post does not take a stand on whether the "expression of concern" is accurate, and notes that only one of Dr. Fernandez' three affiliated institutions expressed concern, and that another of the institutions investigated and found no basis for concern.

Nonetheless, Dr. Fernandez has threatened Retraction Watch with immediate civil and criminal action. His theory: an expression of concern is not a retraction, and therefore it is defamatory to feature on a blog called "Retraction Watch."

It was brought to my attention that the “Expression of Concern” to be published in BMC Genomics in relation to my contribution to BMC Genomics was published already by you as a retraction in “Retraction Watch”, BIOMED Central and numerous other places on the web.

An Expression of Concern is not a retraction.

I must ask you to please remove your libel from Retraction Watch and from all the other sites where you have posted your defamatory piece since it has damaging consequences to my reputation.

If you fail to do this by tomorrow I will take legal action against you. I will sue you for damages in a Civil Court.

I decided to write to Dr. Fernandez to give him a chance to articulate his theory better before I wrote about it. I thought, perhaps, it was not as breathtakingly frivolous as it sounded. Dr. Fernandez responded, proving me quite wrong: his theory is actually, explicitly, deliberately, exactly that stupid. You can read the entire correspondence at the end of this post. Some highlights:

An Expression of Concern is not a Retraction and hence it does not belong in a Retraction Watch blog. If you publish an Expression of Concern in a Retraction Watch site, everybody equates the Expression of Concern with a Retraction or is lead to believe that they amount to basically the same thing, or that both are equally serious misdemeanors.

Even if the Retraction Watch piece portrays the Expression of Concern accurately, the mere fact that the latter is there tarnishes my reputation because it can be construed as something much more serious than what it really is. For that reason I will sue both in Civil and Criminal Court tomorrow unless all the defamatory posts are removed from the web by 10am.

Dr. White! Please! You are a very well educated man. This is a no brainer.

Imagine I am inconclusively charged in a confusing episode and end up appearing in FBI Most Wanted.
My reputation will be tarnished for a very long time no matter how accurately I have been portrayed in FBI Most Wanted.

The Expression of Concern refers to an inconclusive investigation with split vote, but placing it in Retraction Watch would lead an impartial observer to believe I have committed some crime equivalent to or as serious as one that would merit retraction. Otherwise, why would it be there?

This action is misleading the general public to believe that there is something serious with the paper, when there is only a difference of opinion on certain results. Apparently, Retraction Watch is not removing their defamation, instead it keeps inflamming the issue and is now harassing me through their lawyer. How can people find time to engage in such activities?

[Note: As you can see from the full correspondence below, I never suggested I am Retraction Watch's lawyer — to the contrary, I explicitly told Dr. Fernandez that I was a writer seeking comment. Moreover, I did not represent that I am "Dr. White." It is true that some people with law degrees refer to themselves as "doctor." The correct term for these persons is "insufferable gits."]

Dr. Fernandez' theory is utterly frivolous. Retraction Watch has reported that an "expression of concern" has been published about Dr. Fernandez' article. Dr. Fernandez concedes this is true. Retraction Watch explicitly and repeatedly calls it an "expression of concern" and links to it, allowing the reader to evaluate it. Retraction Watch reports "expressions of concern" — which are part of the array of responses to questioned scientific articles — all the time. Dr. Fernandez' theory — that a blog called "Retraction Watch" can only write about retractions, and not about the broader array of responses to questioned scientific articles, even when it correctly describes those responses and links to them, finds no support in law or logic. Among the doctrines that defeat Dr. Fernandez' theory are these: truth is an absolute defense to defamation. A purportedly defamatory statement is examined by courts for its reasonable interpretation, not the interpretation some hypothetical dim person would give it. Both of these rules annihilate Fernandez' very foolish argument.

If Dr. Fernandez attempts to "sue in criminal court," he will learn that Wisconsin — where he is apparently located — does not seem to allow citizens to file criminal complaints, as some states do. Though Wisconsin has a criminal defamation misdemeanor on its books, no prosecutor will file criminal charges based on Dr. Fernandez' ridiculous theory, especially because the acts were not committed in Wisconsin. If Dr. Fernandez files a civil action for defamation, he can expect the following: the Streisand Effect, the Popehat Signal, widespread pro bono support for Retraction Watch from the First Amendment community, widespread scorn for Fernandez from the scientific community, a thorough cockroach-stomping in court, sanctions, and the possibility of being a defendant in a malicious prosecution action.

Even if Dr. Fernandez steps back from the precipice — even if he gets minimally competent legal advice — he's already damaged his reputation, perhaps irreparably. He's acted like an angry blustering oaf who is pathologically intolerant of criticism. Ask yourself — how much do you trust the work of a scientist who threatens to sue for true reports of peer review of his work? Would you feel comfortable ingesting a drug developed by a chemist who threatens criminal charges against someone who reports — truly and accurately — that other scientists have raised questions about his conclusions? Would you hire a consultant who makes foolish public legal threats without first acquiring any grasp whatsoever of the applicable law? Would you invest in a pharmaceutical company whose Chief Scientific Officer utters civil and criminal threats against reports of scientific dissent?

In the past, thuggish and vexatious legal threats have been common because they've been risk-free. In the Information Age they aren't. When you act like a bully, you can become famous as a bully immediately, and reap the consequences.

Dr. Fernandez, meet the consequences.

Appendix: My Correspondence With Dr. Fernandez

Dear Dr. Fernandez,

I am an attorney in Los Angeles, a member of the First Amendment Lawyers Association, and a blogger. I write about subjects including free speech, legal threats against bloggers, and the use of the legal system to chill speech.

I have a question about your legal threats to Retraction Watch, reported here: http://retractionwatch.wordpress.com/2013/04/22/retraction-watch-threatened-with-legal-action-again/

I note that the Retraction Watch piece of which you complain appears to state that the issue is, in fact, an Expression of Concern and not a retraction: http://retractionwatch.wordpress.com/2013/04/19/conflicting-investigations-prompt-expression-of-concern-in-bmc-genomics/

Are you willing to comment? If so, can you identify what specific statement Retraction Watch has published that you believe to be false and defamatory? If it's not a matter of a false statement of fact, what in the article do you believe is actionable?

Furthermore, before making your threats, did you consider the natural and probable consequence of making them, in terms of the level of scrutiny the Retraction Watch post would draw? Are you familiar with the term "the Streisand Effect"?

Any comment about the matter is appreciated. I am contemplating writing about your threats.

Some of my prior pieces about such legal threats include

http://www.popehat.com/2013/04/11/dr-bharat-aggarwals-attorneys-make-bumptious-legal-threats-against-retraction-watch-blog/
http://www.popehat.com/2013/04/04/bring-me-the-head-of-that-threatening-lawyer/
http://www.popehat.com/2013/03/13/barbara-barbara-streisand-never-heard-of-her-now-back-to-my-threat/

Thank you,

Ken White
www.popehat.com

Ken White
Attorney at Law

I am in receipt of your message pasted below.

An Expression of Concern is not a Retraction and hence it does not belong in a Retraction Watch blog. If you publish an Expression of Concern in a Retraction Watch site, everybody equates the Expression of Concern with a Retraction or is lead to believe that they amount to basically the same thing, or that both are equally serious misdemeanors.

Even if the Retraction Watch piece portrays the Expression of Concern accurately, the mere fact that the latter is there tarnishes my reputation because it can be construed as something much more serious than what it really is. For that reason I will sue both in Civil and Criminal Court tomorrow unless all the defamatory posts are removed from the web by 10am.

Ariel Fernandez

Dr. Fernandez:

Thank you for your response. I have a couple of follow-up questions.

As I understand it, it is your position that a blog called Retraction Watch may not write about Expressions of Concern, even if it expressly identifies them as an Expression of Concern, and links to the Expression of Concern so readers can see it for themselves.

Are you represented by an attorney? Has anyone with any familiarity with defamation law or the First Amendment to the United States Constitution suggested to you that your theory has any legal merit whatsoever?

Have you contemplated the possibility that any lawsuit will result in sanctions against you?

Are you familiar with the term "The Streisand Effect"?

Thanks for commenting.

Ken White

Dr. Ken White, Attorney at Law
Dr. Catherine Rice, Senior Editor BMC Genomics

Dr. White, Dr. Rice,

Dr. White! Please! You are a very well educated man. This is a no brainer.

Imagine I am inconclusively charged in a confusing episode and end up appearing in FBI Most Wanted.
My reputation will be tarnished for a very long time no matter how accurately I have been portrayed in FBI Most Wanted.

The Expression of Concern refers to an inconclusive investigation with split vote, but placing it in Retraction Watch would lead an impartial observer to believe I have committed some crime equivalent to or as serious as one that would merit retraction. Otherwise, why would it be there?

Dr. Rice, would you please intervene and request removal of the libels? The Expression of Concern issued by your journal has been misconstrued into several defamatory pieces.

Thanks much.
Ariel Fernandez
_______________

Dr, Fernandez:

Thank you for your response. I will be writing about your threats, as will, I suspect, other bloggers concerned with the First Amendment and frivolous and censorious legal threats.

Ken White

Catherine Rice
Senior Editore, BMC Genomics

Thanks for talking with me this morning. I am still waiting the Expression of Concern to be published in my paper and the Editor's Note to be removed. Three months have already passed.

As I have indicated, an Expression of Concerm is not a Retraction. Yet, Retraction Watch, a blog that reports retractions of scientific papers, mistakingly included your Expression of Concern in their reporting. Of course by including the Expression of Concern in their blog that tracks retractions, they are implicitly indicating it is a retraction or something of comparable seriousness.

This action is misleading the general public to believe that there is something serious with the paper, when there is only a difference of opinion on certain results. Apparently, Retraction Watch is not removing their defamation, instead it keeps inflamming the issue and is now harassing me through their lawyer. How can people find time to engage in such activities?

Since BMC Genomics is also being affected, it would be great if we can join forces to bring these people to justice or somehow impair their capacity to inflict damage.

Thanks for your cooperation.

Ariel Fernandez

Last 5 posts by Ken White

Comments

  1. Kilroy says

    If only he knew this would all have gone away if he'd promise to use ponies as his next test subjects.

  2. tsrblke says

    Wow.

    Even his analogy to the FBI case isn't really what he seems it to be. Is he saying that if he's charged with a crime, ends up on the FBI most wanted list and is later found not guilty in court that the FBI is guilty of liable/defamation (absent any gross incompetent and/or malice?) IANAL, but that can't be right.

    Even setting aside the obvious stupid pointed out by Ken (that a blog's name doesn't necessarily circumscribe everything it reports on). I'd point out one of the other definitions of watch: "Vigil." That's sort of what Retraction watch does actually. They don't just report retractions, they report on all things that may (or may not) lead to retractions. Kinda like keeping "watch" over science (*gasp*).

  3. SassQueen says

    The thing is, I can kind of see his point, that he assumes that the General Public is so stupid and undiscerning that they will see the word "retraction" and assume everything below it is a retraction.

    Fortunately, we aren't so stupid. Too bad I can't say the same for him.

  4. Trebuchet says

    Ken, I'm confused. You quote his original threat as saying "I will sue for damages in a Civil Court." Later, however, you state that he's threatened to sue in Criminal Court, and that he can't. Have you misread something? Or am I missing something?

  5. Jessie says

    Well, following this legal theory, I sure hope the NY Times doesn't write about anything that happened in New Jersey.

  6. says

    See Ken, now he's going to sue you, because this clearly has nothing to do with papal headwear!

    You are libel! Conduct yourself according to the big leagues…

  7. says

    @Trebuchet –

    If you fail to do this by tomorrow I will take legal action against you. I will sue you for damages in a Civil Court.

    For that reason I will sue both in Civil and Criminal Court tomorrow unless all the defamatory posts are removed from the web by 10am.

    He mentions doing both. On account of the stupid.

  8. says

    The ongoing mistaken belief that being smart in one thing makes you smart in all things.

    There is also the seeming belief in academia that unless you have a PHd. you are a blithering idiot and unable to understand anything beyond the simplest concepts. I have a cousin who is a research scientist a local university. I had to stop going to holiday events at his home because the idle conversation amongst he and his colleagues would inevitably wander off into why the government needs to step in and protect people from themselves and all the misinformation on TV, in print, on the internet, and so on. The internet especially seems to horrify them, as ANYBODY could post anything they wanted.

  9. says

    I wanted to write something on the story on my blog, but my blog is in Polish and writing about Dr. Fernandez in Polish would be obvious defamation.

  10. Waldo says

    The "I'll sue you in criminal court" is a tell that he hasn't even contacted a lawyer about this.

  11. says

    It's somewhat disturbing to understand where a C&D bully censor is coming from, but I kind of do here. In his mind people may think that because the story is on "Retraction Watch" it must be a retraction. The reason his logic fails (to say nothing of his actions) is because, not only is it labeled correctly, but the audience who would read the report is somewhat sophisticated and not composed of drooling mouth-breathers.

    My own website is simpsonbbq (shameless, but related plug), but I blog about beer half the time and law once in a while. I'm not limited to sweet, sweet pork and brisket just because of my URL. When I review a beer, I don't get emails from the brewer angry that the public will think they make short ribs instead of english strong ales… though that would be hilarious.

  12. Earnest Gordon says

    Wilhelm Arcturus –

    Fernandez doesn't just have a Ph.D., according to his CV it was the fastest awarded at Yale. And per the same CV, he is single and with no dependents. Interesting fellow.

  13. says

    I love his assertion that this is misleading to the "general public." Who the heck does he thinks reads scientific journal retraction blogs? And why would the "general public" care about "Subfunctionalization reduces the fitness cost of gene duplication in humans by buffering dosage imbalances". The "general public" (me) only understands about 3 of those words and that's just the title.

    I am continually amazed by the lack of common sense required to fall prey to the Streisand effect, and that so many otherwise educated and influential people seem to lack it.

  14. SPQR says

    Its puzzling to me how much of the fatuous threats come from being a very silly person, and how much come from what appears to be a person communicating in what is obviously not his native language.

    Ah, heck, I'm going with "silly person".

  15. MattS says

    Ken,

    " It is true that some people with law degrees refer to themselves as "doctor." The correct term for these persons is "insufferable gits.""

    I thought the correct term for those persons was Professor. :)

  16. Dustin says

    Please remove this post immediately. It would be difficult, if not impossible, for the pope to wear an expression of concern on his head.

  17. BTCG says

    Ariel seems to forget the Wayback machine and the power of Google cache, for starters. Removing content does NOT remove content.

    However, I was amused at his letter to the editor of MG Genomics, suggesting that they join forces agaist the miter-led army of the general public. He submitted something that may or may not require a retraction at some future point. In any case, the article has prompted additional work at the journal (assuming BMG is a journal) that otherwise 'good' science would not. Scientific journals hate retractions, since the fact that they allowed publication of 'bad' science impugns the reputation of the journal. And here's the author, suggesting that BMG embroil themselves in lawsuitery to forestall the Popehatted. This Dr. must have balls of Steele.

  18. says

    The number of typos in Dr. F's emails belies the alleged CV that Earnest Gordon mentions. Or is pointing out the typos defamatory?

    I await an update from Catherine Rice, Senior Editore [sic] of BMC Genomics!

  19. mcinsand says

    Dr. Fernandez has done to his own credibility what North Korea has threatened to do to Japan, South Korea, and the US. Only an idiot would see a report of an 'expression of concern' as defamatory, and only an idiot would see that as being off-topic for a site such as Retraction Watch. If anything this is a sign of diligence; Retraction Watch reported that someone expressed concern, but there was nothing to see… no retraction.

    Just claiming that there is any significance to a nonretraction being covered under Retraction Watch further undercuts any claim to cognitive performance that Dr. Fernandez might like to wish that he had. Debate over journaled research is definitely within the subject matter of a site like Retraction Watch (the site isn't 'Retraction Reports,' after all). That doesn't matter, though. There are absolutely no requirements that a site's contents are limited to whatever title or masthead the siteholders put up. An 'Adorable Puppy' site would be well within all rights and privileges to carry an article on rebuilding carburetors.

    A good, competent scientist will welcome review and scrutiny. Ideas that withstand scrutiny are further reinforced, and ideas that need refining become better. All that Retraction Watch publicized was that there was concern and that concern was effectively dismissed.

    Depending on Fernandez source funding, this trainwreck of a thought process that he has going on could very well impact his wallet. He is publicly displaying irrationality and an inability to think logically. If I was a reviewer for a funding grant, I would tend to go to the next application instantly, on seeing his name. It does work that way, and I did serve on a panel to review project proposals for congressional funding some years ago. No-one with a working brain would care about something like the Retraction Watch report, but few groups want to fund a researcher that will act like Fernandez without having the slightest clue about the law, derogatory speech, libel, defamation, or the First Amendment. His message in itself does not suggest a mind good for scientific thinking.

    Regards,
    mc

  20. Trebuchet says

    @ those who found the "criminal" threat for me: Thanks! My searching ability seems to be lacking.

    @MattS:

    I thought the correct term for those persons was Professor.

    As I recall, law degrees used to be LLB, or Bachelor of Laws. That didn't sound sufficiently impressive, so some years ago they change it to JD, or "Juris Doctor". Which is not the same as "LLD" or Doctor of Laws, which would apply to the professors.

    Since the change was quite a while ago, most active lawyers today would be JD's, and hence some will figure themselves entitled to be called "Dr."

    (Posted entirely from memory, corrections welcomed!)

  21. mcinsand says

    Wilhem Arcturus,

    >>There is also the seeming belief in academia that unless you have
    >>a PHd. you are a blithering idiot …

    There is also a misconception that having a PhD guarantees that you are not a blithering idiot. Education does not automatically imply intelligence. I know many PhD's, and some are definitely blithering, if not drooling, idiots. Furthermore, I have a PhD, and I will admit to being an idiot about some (many) things.

    Regards,
    mc

  22. says

    Yet another reason to found my own country where I am absolute ruler, and can charge assclowns like this guy with Stupid in the First Degree and have them pantsed and dragged around the track.
    Twice.

  23. kallethen says

    "It is true that some people with law degrees refer to themselves as "doctor." The correct term for these persons is "insufferable gits.""
    I am glad I was not sipping my soda the moment I read this, otherwise I surely would have snorted it from my laughter.

  24. Trebuchet says

    Expanding on my previous post. According to Wikipedia:

    It was only after 1962 that a new push—this time begun at less-prominent law schools—successfully led to the universal adoption of the J.D. as the first law degree. Student and alumni support were key in the LL.B.-to-J.D. change, and even the most prominent schools were convinced to make the change: Columbia and Harvard in 1969, and Yale, last, in 1971.[67] Nonetheless, the LL.B. at Yale retained the didactical changes of the "practitioners courses" of 1826 and was very different from the LL.B. in common law countries other than Canada.

    http://en.wikipedia.org/wiki/Juris_Doctor

  25. Nate says

    Um, Ken, I do not think you realize how many scientists are "angry blustering oafs". It gets to be kinda mandatory, especially for those who have reached some sort of "importance". To be a scientist you have to follow the catch-22 sanity law, i.e. to stay sane, you must be insane.

    To be fair though, it can get frustrating to talk science to regular people. Most people don't care; those that do but haven't taken the time to understand science are very susceptible to suggestion of interpretation. Again, though, I understand that frustration is not a reason for a defamation suit, nor restrictions on free speech.

    (Any suggestions for a blog that blends science and free speech? I am intrigued by these kinds of cases and wonder about the relationship and responsibility of people who report science.)

  26. Amused says

    As far as "Dr. White" goes, Fernandez is is Argentinean, and apparently spent some time in Germany, both countries where lawyers are in fact referred to as Doctor. Germany is a particular stickler for titles — if Ken were were a law professor in Germany he would be referred to as something like "Herr Doktor Professor Weiss".

  27. tsrblke says

    You know.
    The fact that Retraction Watch takes so much flack form people they've reported upon, shows that their accomplishing what was intended.
    In the past (especially pre-internet, but still today) retractions may have and often did go unnoticed. They were very briefly published in the journal at some later time.
    The internet has allowed us to digitally stamp "RETRACTED" on all copies that are downloaded after the retraction (something not possible in the age of print without some large manual work.)
    But still, offenders could quietly remove that article from their CV and move on.

    Not so much now. RW serves as an aggregator for this stuff. So more people can see the "expression of concern" or retractions and consider taking a more thorough look at past and future papers from various authors. (Depending of course how they feel about either.)

  28. yuubi says

    Surely "Dr. White" is merely an attempt at respectful language from someone in academentia, where Dr. Smith might take being called "Mr. Smith" as a grave insult? I've certainly heard of non-doctors being called Dr. in cases of doubt.

    This is not meant to imply that a doctorate in a science grants any legal knowledge.

  29. Kasey says

    I kinda feel sorry for the guy. He clearly has no attorney, and is clearly ignorant in the law, and his writings have the marks of desperation.

  30. MattS says

    Paige (@Undertheradar76),

    Pantsing is much too lenient for this case. This case calls for at least an atomic wedgie.

  31. KRM says

    So… do you think that that good doctor has googled "Streisand Effect" yet? Ken asked him, twice.

  32. MattS says

    Trebuchet,

    My point was that while outside of academia, the title doctor is generally only used by medical doctors, inside of academia it is normal for anyone with a doctorate in any subject to use the title doctor.

  33. corporal lint says

    Please remove this post immediately. It would be difficult, if not impossible, for the pope to wear an expression of concern on his head.

    Not true! The former pope had an excellent hat with Christ as the shepherd tending his sheep on it. If that's not allegorized concern then I don't know what is. Dustin, you are libel!

  34. ChrisTS says

    I feel somewhat sorry for this one. True, he 'threatens' to sue, but he is not a lawyer (duh) and apparently has not bothered to consult one. Also, he's clueless, which is not good but also not evil. I'm not even sure he is really a bully, so much as obsessively worried about his reputation.

  35. Maria says

    I'm pretty sure the reason why Fernandez called Ken "Dr. White" is because he's from Argentina, where that's what lawyers are called.

  36. Stephen Perdue says

    I'm intensely curious about Dr. Rice's response to all this. Unlikely as it seems, I really hope she cc's a reply to Ken and that it's something appropriate to publish.

  37. nlp says

    The sad part is that I can see him finding a lawyer (not necessarily a good lawyer, just a lawyer without many clients and a lot of student loans to pay) and actually going ahead with this suit.

  38. Ken Mencher says

    And I never thought reading a law blog would be so entertaining…

    I just wonder if this person has consulted with a medical doctor regarding their horrible case of foot *in* mouth disease….

  39. Dan Weber says

    Tangentially related, here is a video some guy made to make fun of someone else's YouTube video. Read the description to see the impotent lawsuit-threatening from the original guy, including "Parody is not protected under fair use when the arts and assets are claimed to be ones own, and they're not."

    http://www.youtube.com/watch?v=MoVhdP_yXnc

    The parodist apparently won and got his stuff back up on YouTube without having to put the original artist's YouTube ads on it.

  40. says

    I hearby suggest that The Tonight Show can not speak of any events that happened yesterday, nor of any events to come. Take that, NBC!

  41. MattS says

    In light of Dr. Fernandez's reasoning as to how people will view a non-retraction story on Retraction Watch and in the interest of truth in advertising I propose that this blog be renamed "Litigious Asshat" since that is what most of the articles are about. :-)

  42. Keith says

    Dear Dr. Pope,

    As you are writing about neither Popes nor Hats, your posts about Dr. Fernandez are blasphemous and will lead him to sue you in civil court.

  43. Frank Rizzo says

    Someone on the internet who is demanding ACTION or SUEZ! states the following

    " This action is misleading the general public to believe that there is something serious with the paper, "

    Can this be true?

    @ He really said that…?!?: heh. fava beans.

  44. Paul Brookes says

    As I learned all too well with the ill-fated science-fraud.org, the name of the site alone is enough to get people annoyed, regardless of the actual content published or whether they can prove it is factually incorrect. My response was to cave (quite frankly not worth the hassle of fighting with such people when I have a career to be getting on with), but if one has sufficient resources/backing/time then I can see how the "show me your cards then" approach has merit.

  45. Zeeblebrox says

    As I was thinking about this article, I came up with a hypothetical scenario in which the plaintiff's theory might make something resembling sense.

    What if someone hypothetically started a blog called 'peopleIwillKillTomorrow.com' and then only posts a list of names as the content of the sole post on said hypothetical blog? Would it be considered a threat in that case? (I know that threatening assault =! libel/defamation) but am just curious if there are any scenarios where the name of a website can be viewed in conjunction with the content in a legally actionable way (assuming that the content and name when viewed independently don't break any laws.)

  46. James Pollock says

    IANAS.
    Appearing on (in?) Retraction Watch probably IS fairly damaging to the reputation of a working scientist. The actual solution, the best way to stay out of Retraction Watch… do good science and don't cook the books when reporting your results… doesn't really apply, so far as I know, so I think he has a right to be pissed off (this is not a defense to making stupid legal threats, of course, but I think he has a valid reason to feel wronged, even if it isn't a legally cognizable one.)

  47. anne mouse says

    Bob,

    Wikipedia has a definition of "subfunctionalization", which is jargon. The rest of those words are pretty clear, except
    – I doubt that "in humans" is really germane to the argument (but it's a fine use of keywords in publishing)
    – I have no idea why he uses the word "buffer" instead of something more precise. It's bad enough to use it as a verb, but he's using it loosely, at best.
    Basically, the paper is about something that can happen after an organism somehow ends up with extra copies of a gene: the copies sometimes mutate so that they in effect each do a different part of the work that the original gene did.
    The question is "why?" and the answer, as usual in biology, is "it's adaptive". (In other words, it's good for the survival of the organism [or more precisely, its genes].) The real question is "why/how/in what way is it adaptive?"
    The basic argument is that having extra copies of a gene usually results in an excess of the gene's product, which is (almost tautologically) maladaptive. If one or more copies then mutates so it's less productive, that's a compensating adaptation. (But if all the copies mutate, they'd better do so in complementary ways.) Fairly uncontroversial, the interesting part is trying to design an experiment that would actually demonstrate this kind of thing (and even more difficult, discriminate among competing hypotheses).
    I have no ideas if this is what triggered the "statement of concern", but if you're doing experiments, you really *don't* expect to see the kind of results that Biochimie points out in the comments on Retraction Watch.

  48. James Pollock says

    "As I was thinking about this article, I came up with a hypothetical scenario in which the plaintiff's theory might make something resembling sense."

    Suppose the FBI never invented the "most wanted list" in the 1930's. Instead, we get to the modern Internet age and a private individual creates a website that he calls "The FBI's ten most wanted criminals". On it, he lists nine fugitive criminals who are, in fact, the worst criminals out there that the FBI would indeed like to capture. Then, as a lark, he also lists one guy who's "wanted" because of an overdue library book (to make it a federal case, the book was borrowed via interstate ILL, or maybe from a federal installation like a military base.) The allegation that the guy is wanted by the FBI is true, and the website accurately lists the reasons why.

    In that case, the name of the website is arguably the root of a defamation case, because although the person is wanted by the FBI, they are not "most" wanted and the grouping with the other criminals falsely suggests criminal acts, one of the fundamental types of defamation.
    This is not that.

  49. Malc says

    1. With the wisdom of Supreme Pontiff Doctor Popeken's recent advice on "the Streisand Effect", the obvious solution for Proto-Retractor Fernandez _should_ have demanded that RetractionWatch publish a statement from him elaborating on the controversy.

    2. … perhaps by praising the system that challenges research, and noting that, _even if the data is retracted_, that doesn't automatically mean that the thesis is incorrect.

    3. I suspect Cardinal Fernandez has confused civil-vs-criminal with state-vs-federal, which is a not uncommon fault amongst those lacking Metropolitan Kenhat's experience.

    4. Is Paul Duffy admitted to practice in Wisconsin? Just a thought, given that he may have time on his calendar now…

  50. Orville says

    Following the good Doctor's example, I hereby announce my intentions to sue Time for hosting a website that does not confine itself to stories about clocks.

  51. perlhaqr says

    Wilhelm Arcturus: The ongoing mistaken belief that being smart in one thing makes you smart in all things.

    There is also the seeming belief in academia that unless you have a PHd. you are a blithering idiot and unable to understand anything beyond the simplest concepts.

    Oh dear god yes. Or the synthesis of these positions: "I have a Ph.D, therefore I am an expert in all things."

    I work in the IT department at a university. If I never heard the phrase "I think I know what I'm talking about, I have a Ph.D, you know!" again, it would still be too soon.

    (Little known fact: A Ph.D in Medieval Poetry does not confer even the slightest expertise in network design.)

  52. says

    I'm a regular, but this is my first post. Of the stupid comments made by the good Doctor, this one aggravated me enough to stop lurking:

    Apparently, Retraction Watch is not removing their defamation, instead it keeps inflamming the issue and is now harassing me through their lawyer. How can people find time to engage in such activities?

    Assuming Ken was actually representing the blog, I'm livid that Dr F considers a direct response from counsel to constitute harassment, and that engaging in a discussion on the merits of the threatened legal action would be considered a frivolous activity.

  53. Jon says

    Based on this guy's theory, does that mean the onion could only post about onions? That would be both saddening and delicious.

  54. Nobody says

    @Michael Travis: As fast as I skimmed the article, I'm amazed that anyone thinks that Ken is representing anyone when he is not.

  55. AlphaCentauri says

    You should send the guy a link to both The Onion and The Oatmeal. He needs to lighten up.

    I wonder how he would feel if his article stood up to scrutiny, and then Retraction Watch failed to post the update, since a confirmation is not a retraction…

  56. Mike says

    perlhaqr: (Little known fact: A Ph.D in Medieval Poetry does not confer even the slightest expertise in network design.)

    Taking a cue from the late Hunter S. Thompson (renowned "doctor" of journalism), when I invoke my Ph. D. I usually do it ironically as in "Can I cook a paella? I am a doctor of Spanish, you know." I don't think I've ever said that to the IT guys, but hopefully if I did they'd know to take it with a gain of salt.

  57. Delvan Neville says

    Apparently, Retraction Watch Herr Protodoctor Fernandez is not removing their defamation frivolous, unfounded censorious asshattery, instead it keeps inflamming the issue and is now harassing me anyone who asks him about his complaint through their lawyerhis own self because he (hopefully) doesn't find a lawyer will to try to ply the case. How can people find time to engage in such activities when they could be sciencing instead?

    Fixed that for you Mr. Fernandez.

  58. htom says

    Does this mean that duffleblog.com can only report on duffles? That would give me a sad.

  59. OngChotwI says

    perlhaqr: You sound like someone who has had to remove a personal Wireless Router from a learned-one's office/lecture hall that was causing network difficulties. :)

    Is there any move in higher academics to require classes on Common Sense? Or are all the stories about PhDs that would flunk ComSense101 merely being passed around since we lesser schooled folks like to make fun of those with more time in the school system?

  60. Scote says

    "
    Waldo • Apr 23, 2013 @8:37 am

    The "I'll sue you in criminal court" is a tell that he hasn't even contacted a lawyer about this."

    Or he contacted Med Express Sales' lawyer… :-o

  61. says

    I hear you can find very experienced big-league lawyers on craigslist.

    Which spawns the question: Mr, excuse me DOCTOR White, if you're such a playa why aren't YOU on craigslist?

  62. Nobody says

    Oh man, the more I read that filing the sadder it is. They wax poetic about how COURT TRANSCRIPTS are "unauthenticated" and how he doesn't show how he has personal knowledge of their authenticity. I mean, it's not like this court could just check up on that or anything.

    IANAL, but even I can tell that these objections are desperately grasping at straws. I'm sure it helps preserve their objections (meaningless though that may be in the end), but at the same time it underscores just how pathetic and flimsy their arguments are when time after time they have to copy & paste the same ridiculous objections. This sort of repetitious pro forma crap is the sort that deserves, in my opinion, a one word reply from the court: DENIED.

    But if the judge wants to mock their objections first, I'm okay with that too.

  63. Kaitian says

    Does this mean Google can only search for terms relating to Google? Perhaps Yahoo can only be limited to people yelling yahoo or groups of yahoo's (insane asylum members)? Hell, does that mean Bing can only be limited to sudden events. Aww damn it, I've gone off the cliff, consider me a yahoo (nut) now.

  64. Andrew Roth says

    @Amused, 9:38:

    A friend of my mom's who is an RN was nonplussed when a German physician started calling him "Doctor" to his face. The physician insisted that this was the only appropriate title by which to address him because the nurse had thoroughly taught him some important clinical skill, the details of which I've since forgotten. I don't know whether this physician was being earnest or was dryly satirizing the German penchant for titles.

    At the other extreme is the self-described Dr. Peter A. Barone, the Florida prosecutor whom Mark Bennett profiled in January as an "asshat prosecutor of the day" for offering to correct other parties during court proceedings should they fail to address him properly in light of his newly conferred doctorate. Professor Dr. Barone is by all appearances an insecure semiliterate who compensates with protestations of grandeur.

  65. Dan says

    The references to papal millinery aren't quite correct, as the pope is not a woman. I think "papal haberdashery" would be the correct expression.

  66. MattS says

    Nobody,

    One more question, why are they objecting now to a declaration filed in January? A day late and a dollar short.

  67. Austin says

    A classic comic from xkcd.com is what the above would have read, had I included my link correctly. Want to make I attribute the comic.

  68. Nobody says

    @MattS: They're trying to preserve every possible objection. So they put down everything they could possibly think of. Most of it is simply pro forma copypasta to cover every base. By and large, their objections are just silly. Maybe there's a real one in there somewhere, but I can't find it. Granted, I didn't look very hard, either. Couldn't stop laughing at the notion that court transcripts are unverified hearsay or whatever it was they were trying to say. Not sure they WANT this court reading those to verify it, lest they give the judge more ammo. But it's their own grave they're digging, so I'm not one to stop them.

  69. He really said that...?!? says

    Dr. Fernandez,
    Welcome to the big genes. Recombine yourself accordingly.

    @earthclanbootstrap-Well played sir.

  70. Ross Judson says

    I usually enjoy Ken's posts and the ensuing comments. Not this time.

    Here's how it comes across: How dare this non-lawyer make threats? Gleeful invocation of the Streisand effect ought to be tempered a bit when the receiver of it has an emotional, if not legal, point.

    Listing this scientist's paper on "Retraction Watch" does have a negative impact on his reputation. That's not hard to understand, and it's ridiculous to deny it. A site called "Drunk Drivers" shouldn't list drivers who have received tickets for speeding.

    The emotional effect is separate from the legal issues involved, of course, and I have no doubt that Ken is right on those points. It appears that "Drunk Drivers" is well within its rights to publish a list of speeders on its site as well. Perhaps we can limit the celebration of that fact more appropriately.

    The machines of mockery are well-oiled, are they not?

  71. says

    @Ross:

    Should Retraction Watch (1) change its catch, easy to remember name, or (2) stop reporting on scientific journal responses that are part of the continuum leading to retractions, and central to their mission, but not retractions, however specifically they label them?

  72. Ross Judson says

    Since making fun of non-lawyers seems to be the point of this post, I'll challenge Ken's black-and-white application of reader's logic to seeing an "Expression of Concern" on the "Retraction Watch" site.

    Why on earth do you believe that human beings are the only readers of information on the web?

    I guess you can be forgiven for not being a computer scientist, or information theorist. You might not be familiar with probabilistic techniques for text analysis, clustering, or rule mining. You might not be aware that mere proximity of words is enough to create mathematical linkage between concepts.

    Knowledge graphs aren't built by hand (excepting upper ontologies).

    I don't know anything about this particular scientist — I'm just saying a little understanding might be applicable.

  73. says

    @Ross: So we should imagine hypothetical SEO-related reasons he might object, rather than the specific reasons he articulated when asked comment?

  74. says

    @Ross – So we should feel sympathy for misplaced, censorious threats, as long as they're an emotional response?

    It seems to me that we should stand up to them even more if they're emotional responses, because it shows a clear lack of understanding or logic, he's lashing out emotionally, that should be condemned when it leads to legal threats, especially if he hasn't consulted a legal professional first.

  75. Ross Judson says

    @Ken — you are right, of course. I am uncomfortable with your mocking approach to this particular "subject". Seems like a human being, to me, who's stuck in a bad situation that is damaging his reputation. And maybe there's nothing to be done about it, legally — someone should make sure he knows that.

    As I pointed out in my prior comment, if you are a non-specialist in information theory, there may be ramifications here you haven't fully considered.

    Or maybe you have ;)

  76. says

    @Ross – It seems he could avoid the present scenario if he'd just done a better job at "Science"… or whatever.

    Basically, he should embrace it as a learning experience, because the only way something like this ever ends is full-blown Streisand.

  77. says

    @Ross: Here's the thing: people threatened with frivolous lawsuits are chilled whether they are threatened by a weeping Glenn Beck or by Wintermute. Most of the threateners I write about are angry and emotional. As a human being I empathize with strong emotion. But I empathize more with people chilled, stressed, and terrorized by frivolous legal threats and lawsuits.

    The best way to reduce frivolous threats is to change the culture to make them widely recognized as unacceptable.

  78. Matthew Cline says

    @perlhaqr:

    I work in the IT department at a university. If I never heard the phrase "I think I know what I'm talking about, I have a Ph.D, you know!" again, it would still be too soon.

    I assume you read "Bastard Operator from Hell" to blow off steam.

  79. George William Herbert says

    perlhaqr writes

    (Little known fact: A Ph.D in Medieval Poetry does not confer even the slightest expertise in network design.)

    Sadly, neither does a CS degree, even one in networking…

  80. MattS says

    Ross,

    "Seems like a human being, to me, who's stuck in a bad situation that is damaging his reputation."

    The damage is almost entirely of his own making.

    "And maybe there's nothing to be done about it, legally"

    First rule of holes: When you find your self in one, stop digging.

    "someone should make sure he knows that."

    Go back and re-read the the post, particularly the full email string at the end. Ken attempted to do exactly that and got blown off for his efforts.

  81. Maria says

    What I don't like is the idea that if he had done things right, he would not be going through this. It seems to me like it's the same as saying that a criminal defendant must have done something.

    I don't like defending this guy in any way, though.

  82. Ross Judson says

    @Ken: Your perspective makes sense, and if it means you have to take a side in the larger conflict, so be it. But should we not temper ourselves?

    Does Fernandez have a history of litigating in these situations? Has he actually filed a lawsuit?

    If a full-blown tar-and-feather was called for every time a lawsuit was threatened, there'd be a lot of funny-looking, sad, and angry people. Maybe this one called for feathers before the tar.

    On SEO: The cold-hearted mathematics of an inferred knowledge graph are far more permanent than almost any instance of the Streisand effect. The legal profession hasn't figured out how to deal with the vastly expanded and quantified reality that modern information systems present. Everyone needs at least a little room to be their own dumb-ass, or life turns into a reverse lottery.

    @MattS: You see "blown off" in the response to Ken's letter. I see desperation and a plea for help from someone who has been dealing with guilt-by-association for 3 months. Again — does this person have a history of such legal actions? You may be in possession of facts that are not in the article.

    @Maria: Your declaration that you don't want to defend him seems a little…defensive…on your part. Sentences 1 and 2 are chilled in their effects when sentence 3 decides to disassociate itself with them. ;)

  83. MattS says

    Maria,

    When all is said and done, most of the damage to his reputation from this incident will be the direct result of his having made frivolous legal threats against Retraction Watch. The backlash from his frivolous legal threats will exceed the combined damage from any flaws in the relevant paper and Retraction Watch's mention of the concerns about said flaws.

  84. Charlotte says

    Re: Prenda, I would suspect that they had not hired Ms. Rosing at the time and she is playing catch-up. She may be trying to lay ground for an appeal of the expected smackdown (the attorneys here can opine further on this).

    Re: Poor helpless Dears. I worked in an academic-spinoff biotech firm for a while as tech support and quite honestly wondered how some of the Ph.Ds there managed to get dressed in the morning and get to work.

  85. AlphaCentauri says

    IANAL, but I learned about John Peter Zenger in 5th grade. Maybe in Argentina, freedom of the press is too tenuous for people to intuitively grasp that something's not libel if it's true.

  86. MattS says

    Ross,

    "I see desperation and a plea for help from someone who has been dealing with guilt-by-association for 3 months."

    What guilt by association? Any guilt by association from the Retraction Watch post is purely in his own head.

    Do you want to know what I see? I see a desperate cry for help, followed by Ken offering help, followed by a temper tantrum because the help he got wasn't what he wanted to hear.

  87. Shay says

    As long as we're being anal, I think Herr Doktor Rechsanwalt White is more correcter than Herr Doktor Professor White. It even sounds more important.

  88. Matt D says

    He also has had some issues with people not thinking him notable enough – potentially being the user of this IP on Wikipedia, making edits to his own page. Not to mention this sockpuppet investigation.

  89. Frank Rizzo says

    @ tomhynes re:

    He has a Wikipedia page. http://en.wikipedia.org/wiki/Ariel_Fernandez

    lol Just read the talk. Seems like there a some skepticism concerning the edits done previous to the current internet fame being experienced by the subject of that page.

    This article has been tagged by two different editors for conflict of interest and inadequate sourcing of a biography of a living person, and both times the tags were removed quickly. The tags are related. The potential for conflict of interest is high: the vast majority of the edits are by User:Ariel Fernandez(talk) and User:Arifer(talk) (an obvious contraction of Ariel Fernandez). When there is a potential conflict of interest, an editor should be especially careful to add independent sources for any statements about the importance of the subject's work. In this article, there are multiple uses of the word "pioneered" that are not backed by any independent sources. Indeed, "pioneering" is an example of WP:PUFFERY and probably shouldn't be used at all. Arifer should remember that this is an encyclopedia and be aware that all statements should adopt a neutral point of view. Therefore, I am reinstating the tags. RockMagnetist (talk) 16:38, 28 September 2012 (UTC)

    Of course there is much more. TIL what is a meatpuppet too. So perhaps this is not the doctors first visit to the fail rodeo.

    Let's add a paragraph to his wikipedia page discussing and linking this threat and see what he does.

    Someone has already seeded the link to Retraction Watch. I guess Wiki is about to drafted into the big leagues. They should govern themselves accordingly.

  90. James Pollock says

    "(Little known fact: A Ph.D in Medieval Poetry does not confer even the slightest expertise in network design.)
    Sadly, neither does a CS degree, even one in networking…"

    CS is the wrong program. They teach programmers… sorry, software engineers… no, wait… developers there. For networking, you want the IS or IT program. Sometimes this program is part of the college of business, sometimes it's its own department. (At the school where I teach, it's the "Computer Information Systems" department.)

    But all the degree does is lay the foundation; experience counts way more (Personally, I'd want someone with education, certification, and experience for any major project.)

  91. AlphaCentauri says

    @MattS — I see someone with a very rigid personality, who can't be derailed from the idea he's pursuing. That might be a good trait to have when you're pursuing basic science research, but in normal human interactions, it's a problem if you're unable to compromise or to select a second choice when your first choice isn't available.

  92. flip says

    @Ross

    The easy and obvious answer to your concerns is that the "subject" as you put it, is a scientist who is publishing research. Open, honest and quite frankly, rip-it-to-shreds discussion and debate is required in science to get as close to the truth as possible and to prevent any sort of bias creeping into the published results. That a scientist dislikes open discussion of his research, which was entirely accurate, says a lot about how he handles the scientific method.

    This is not mocking a poor schlub who reacted badly to negative feedback. This is a scientist who is worried more about his reputation than being aware of, allowing for, or correcting for, criticisms of his work. He should quite rightly be criticised for his unwillingness to accept free speech about his work – a fundamental part of science and how science works.

    Furthermore, by posting about this issue, Ken and Retraction Watch reveal to the science community and the public at large that this particular scientist is not as concerned about open and honest debate as he should be; and that his attitude towards open debate would not necessarily otherwise have been learned about without such posts as these.

    The legal threats are basically an attack on the scientific method itself. This doesn't just chill speech, it chills *scientific discussion* which is absolutely necessary as one paper doesn't prove anything: you must also convince others with further data, replication, and so on. This is why peer review exists: papers will all have flaws, and having numerous eyes to point to those flaws helps build a stronger experiment for next time around. Noting retractions *and* expressions of concern is important to scientists to help them know which areas are unreliable, which needs more data, which needs replication, and what probability of certainty to assign to which hypotheses and/or results. To hide both retractions and expressions of concern because someone is annoyed at being called out on their paper not being as good as it should be, or data not proving a hypothesis, shows a low tolerance for criticism and a high amount of ego.

    Papers are discussed and debated all the time on the net and from sites and blogs called far less palatable things like "Retraction Watch" and with far less politeness. And they're all written by *scientists*.

    Guilt-by-association is just another way of saying that the name of the person/site who is criticising you is more important than the content and assertions: which is of course, ridiculous. Especially when the content and assertions are accurately written.

    I know nothing about information theory, but I know enough of the scientific method to agree with the tone and content of this post.

  93. Jack says

    I plan on using Dr. F's legal reasoning to sue Kids-R-Us for selling baby things, and vice versa. Also, there is a news stand down the street that sells candy bars. They are so screwed.

  94. says

    I think Pope Francis should sue USA Today for the article on him today, because his actions they describe happened neither today nor in the USA.

  95. David says

    While I agree he's wrong, I also as some other posters do see his point – in an extreme situation could there be a "false light" claim? Given the lower standard of proving damages at least in some jurisdictions re professional reputation if I recall correctly, could that play a role if one gets past liability?

    I mean to take an extreme example (my favourite!) let's say there's a "www.convictedchildmolesters.com" website, if someone who's not a child molester had their name on the website for any reason, I can imagine there might be an argument to be made ("John Smith, a clown working out of his home at 123 Fake Street, is not a child molester as far as we know, unlike Jim Smythe, the convicted molester who escaped from prison and is a fugitive."?).

  96. says

    @David – Two different scenarios, what you suggest does not include facts that are confirmed to be accurate. Retraction Watch posted facts.

  97. MattS says

    AlphaCentauri,

    "I see someone with a very rigid personality, who can't be derailed from the idea he's pursuing. That might be a good trait to have when you're pursuing basic science research"

    No, it's not a good trait to have when pursuing basic science research. The love of (some particular) theory is the root of all bad science.

  98. tylertoo says

    I have been watching this guy for years, waiting for the time when he would finally be exposed for the fraud he is. He has a history of being quietly dismissed or removed for positions at various universities, but never retractions or admission of wrong-doing. Finally, he himself has indicted his work and made plain some of his misconduct for all to plainly see.

  99. Stefan says

    Amen. I expect that Dr. Fernandez will be making many appearances on Retraction Watch as his body of fraudulent work unravels.

  100. Steven C says

    By Dr Fernandez's logic, Popehat can only blog about Pope hats; anything else is defamatory.

  101. says

    Ultimately the sort of person that actually reads Retraction Watch will no doubt understand exactly what an Expression of Concern is and have no confusion regarding the issue. What Dr. Fernandez has done is work hard to ensure that as many lay readers as possible who don't know the difference have now seen the article, thus maximizing the very confusion he was afraid of but that had not happened until he drew in those readers that were primed to be confused.

    His was a completely self-fulfilling fear, the fool.

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