Research misconduct is a high-stakes concern. For research institutions committed to detecting – and thwarting – research fraud, the discovery of putative research misconduct initiates an unstoppable wave of decisions and potentially career-ending reports to funders and collaborators. The stakes are equally high for investigators, who, for the most part, champion their career-long commitments to ethical research, and for whom, even a single external report intimating intentional data manipulation may irreparably tarnish their reputation and jeopardize future funding opportunities.

While investigators and institutions are aligned in conducting a thorough process that ferrets out actual misconduct from mere allegations, institutions are rarely permitted to keep the allegations confidential until an end-result is reached. For instance, PHS-funded institutions must report a threshold finding of misconduct, even if the preliminary findings are not substantiated after a full investigation. Other rules require institutions to alert funding agencies of a potential threat to the health, safety, or welfare of the public. In short, there is a high probability accusations of research misconduct will be shared beyond the institutional process and directly impact the investigator’s reputation and career – even if no misconduct is found.

Avenues of Recourse in Research Misconduct

How does one prevent such negative information from being shared? The most direct challenge would be to the underlying investigation. But the road to dismantling a formal research misconduct investigation is lengthy. Final findings on misconduct typically take years to issue and are subject to an institutional appeal. Moreover, institutions carrying out the proceeding enjoy qualified protections for their good faith efforts to address misconduct allegations and remit the necessary reports to third parties.

Yet, investigators rarely sit idly and wait for the outcome of a lengthy investigation. And even when a formal investigation has concluded, in most cases the investigator vigorously disagrees with the findings and conclusions, as well as characterizations of his or her research acumen.

Indeed, a growing number of researchers have turned toward the legal landscape of defamation to address the many harsh public impacts a research misconduct investigation may have.

A prime example is an ongoing lawsuit filed in federal court in Massachusetts in August 2023 in which a tenured professor of business administration at Harvard Business School sued Harvard University and three bloggers for defamation. The plaintiff, Francesca Gino, alleged she was defamed by the bloggers’ and University’s claims that she manipulated data (in a study about honesty, of all things) when the bloggers urged the University to investigate Gino’s work, prompting a formal investigation by the University that resulted in Gino being put on administrative leave without pay. It also led the University to send out retraction notices for the studies in question, and the researchers to post about her allegedly manipulated data on their blog.

Elements of Defamation

While the First Amendment protects the right to make certain statements, a well-known limitation on that right is defamatory speech. In the context of statements reporting potential or actual research misconduct, a claim for defamation poses unique challenges.

To win a claim for defamation, the aggrieved researcher must establish certain basic elements to set forth a claim of defamation. They are equally true for written (libel) and spoken (slander) statements, which are both encompassed under “defamation.”

• First, that the statement was published. The “publication” requirement does not mean that it needs to have been published in a newspaper or in the case, or, as in the case discussed above, in a blog or scientific publication’s website, but only that it was made to a wider audience than just the person bringing the lawsuit.
• Second, the statement must identify the person being defamed, either directly by name or in a way in which it is clear who is being discussed (for instance, by job title at a specific organization).
• Third, the statement needs to have negatively impacted the person’s reputation.
• Fourth, and lastly, the statement must be false. Truth of a statement is an absolute defense to a defamation claim.

An important caveat is that statements of opinion are not defamation, only statements of fact. In that vein, a 2020 Ohio federal court decision dismissed a defamation claim against a cancer researcher at Ohio State University because the judge found the statements that the researcher was “knowingly engaging in scientific misconduct and fraud” was a protected opinion.

Defamation Claims Against a Public Figure

A defamation claim against a public figure, which includes traditionally public figures such as politicians or celebrities, as well as an individual who has gained prominence in a particular field (or won a Nobel Prize), must prove the additional element that the statement was made with “actual malice.” Actual malice is defined as knowledge that the statement was false or with reckless disregard as to whether it was true or false. However, it is rarely the case that a third-party notice or retraction made in the course of the research misconduct process is so untethered to facts uncovered during an investigation – creating an additional hurdle for famous investigators to bring defamation claims.

A review of these basic elements underscore the inherent tensions in applying defamation law to a research misconduct proceeding. Particularly with allegations of research misconduct, proving the element of “falsity” can be challenging. To prove a defamation claim further requires a plaintiff to effectively prove the ultimate issue, whether his or her research is valid and accurate, as opposed to manipulated or the byproduct of fraud. Thus, to prove the falsity of the negative comment involves a lengthy and costly endeavor, and often further forensic and scientific analysis, all to invalidate the original concern. Proving actual malice poses an increased challenge, as many institutional policies require that, as a threshold matter, allegations of research misconduct be brought “in good faith” before the institution will initiate its own process.

Despite the legal obstacles inherent in raising a successful defamation claim, investigators subject to research misconduct allegations are still continuing to bring defamation suits against their institutions, calling institutions to relitigate the original question whether the data under scrutiny were fabricated, falsified, or plagiarized? Institutions navigating allegations of research misconduct must continue to meet the full plethora of disclosure and reporting obligations, set by institutional policy and funding agencies, but should remain vigilant as to the scope and manner in which information is externally reported. Even where defamation claims are not likely to succeed in litigation, lawsuits grounded in defamation nevertheless bring unwanted scrutiny to the research misconduct process, jeopardize the outcomes, and require a substantial investment of time and resources to combat.