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A federal appeals court panel in New York ruled this week that scientific articles are considered "protected opinion" in a defamation suit between two rival drug companies.
Circuit Judge Gerard Lynch, who wrote the 18-page opinion for a three-judge panel on the U.S. Court of Appeals in New York (2nd Cir.), concluded that a scientific article published in the Journal of Perinatology comparing the effectiveness of similar drugs was protected under the First Amendment.
"The traditional dividing line between fact and opinion is not entirely helpful," Lynch wrote. While statements about contested hypotheses are "in principle matters of verifiable fact," for the purposes of First Amendment and defamation law they are closer to protected opinion, Lynch wrote. Scientific inference is by nature “tentative and subject to revision” and open to debate for experts in the field.
The 2011 article found that a drug produced by Italy’s Chiesi Farmaceutici, S.p.A was more effective in lowering the mortality rate of infants compared to similar drugs produced by ONY, Inc.
In its complaint, ONY argued that the article not only contained several factual errors, it also cherry-picked results that favored Chiesi’s drug, and as a result, the publishers and advertisers violated the federal Lanham Act and the law's New York state counterpart. Both laws bar businesses from deceptive activity. ONY sued in New York federal district court in December 2011.
The matter before the appeals court focused on whether scientific articles were fact or opinion. Because scientific articles are considered opinion, Lynch wrote that courts are "ill-equipped to undertake to referee" disputes on emerging areas of scientific research.
"We have been especially careful when applying defamation and related causes of action to academic works," said Lynch. "The court has been reluctant to recognize causes of action on statements best evaluated by an informed reader."
The court also said that even when a "misleading" conclusion adversely affects a company’s finances, it is the role of other scientists, and not the role of the courts, to reexamine experiments and dispute those findings. In other words, as long as conclusions accurately detail the data and method used, they are protected.
Extending those conclusions to advertisers, the court said that marketing based on those scientific articles cannot be brought to court either, as long as the conclusions are not distorted.
Disagreeing with the court, ONY attorney Mitchell J. Banas said that while the decision protects scientific publications, it leaves consumers vulnerable.
“It’s unfortunate that the law failed to recognize the capacity of advertising,” said Banas. “[This decision] will embolden profit-seekers to disguise advertising as science and I think in the long-run that will inure to the detriment of the public.”
In response, Robert D. Balin, attorney for the publisher of the journal, said that the court specifically addresses advertisements that could mislead the public by excluding conclusions drawn from false data or articles that fail to accurately describe methodology. Overall, Balin said the case was a victory for scientific speech.
“It’s a home run for the First Amendment," said Balin. "We want maximum discussion and disagreement sometimes, which can be heated. We want that kind of back and forth, give and take in science. That is the very essence of science.”
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