Sarkar v. Doe: The PubPeer Puzzle
Despite having been settled over 10 years ago, Sarkar v. Doe’s remains influential, as questions on the limits of privacy on anonymous sites threaten to change the way millions of users interact with these platforms. The original issue in Sarkar v. Doe was whether the First Amendment protects comments on anonymous websites, and what protections these sites can afford to their users if their comments are deemed libel. [1] Millions of users across the country use anonymous platforms to engage with others and, in doing so, may engage in unsavory speech. Anonymous sites have long held that their users’ posts are protected under the First Amendment, but they have also traditionally cooperated with subpoenas in criminal cases. This situation becomes complicated in determining whether anonymous sites afford more protection under the First Amendment than statements made in other forms of more public media like news, traditional social media, and written works.
PubPeer is a platform designed for its users to discuss published scientific research. Users may comment on one another’s research, although many of these comments have led to investigations of research misconduct. [2] In essence, all comments are taken quite seriously and a few will have legal repercussions for federally funded researchers. Originally, commenters were not anonymous on the platform, but this changed in 2013 when PubPeer created a moderation team that certifies that the comments are made by verifiable sources and only pertain to the research. [3] The platform was meant to encourage researchers to discuss with each other, not turn them into whistleblowers. However, there has been a sharp increase in misconduct proceedings sparked by comments on PubPeer. [4]
In Sarkar v. Doe, a cancer researcher sued several anonymous commenters on PubPeer for defamation in 2015. [5] Included in the suit was a subpoena to reveal the identities of the commenters. The Michigan court ruled that PubPeer was not liable to reveal the identities of the commenters besides one. [6] When PubPeer appealed, the Michigan Court of Appeals ruled the ability for the identities of the commenters in entirety to remain anonymous as well within their First Amendment rights. [7]
The standard established for revealing anonymous speakers was set forth in what is now referred to as the “Dendrite-Cahill Standard”. [8] In Dendrite International, Inc. v. Doe No. 3 (2001) the opinion stated that trial courts must balance between the First Amendment right to anonymous speech and the plaintiff’s right to protection of reputation and proprietary interests. Thus, Internet Service Providers must notify the defendant of the subpoena seeking their naming in a proceeding. Lastly, once the plaintiff passes prima facie, the court may weigh the defendant’s right to anonymous free speech against the strength of the cause of action (prima facie) and the degree of necessity in revealing the defendant’s identity. The standard established in Doe v. Cahill (2005) further outlined what courts needed to reveal an identity, with the Supreme Court of Delaware requiring the plaintiff to establish a good faith standard [9]. Under the good faith standard a plaintiff must have the following “(1) that they had a legitimate, good faith basis upon which to bring the underlying claim; (2) that the identifying information sought was directly and materially related to their claim; and (3) that the information could not be obtained from any other source.” [10]
Michigan’s Court of Appeals specifically relies on Ghanam v. Does in asserting that Sarkar’s claims are unable to pass a motion for summary disposition and his claim does not specify the language that is considered defamatory. [11] The Court finds that, since the commenters did not claim a clearly definable assertion about Sarkar, like guilt of research misconduct, there is no strong evidence that the comments were defamatory to the point of unmasking the commenters. [12] After the Michigan Appeals Court released their opinion, Dr. Sarkar dismissed the lawsuit.
Sources
Sarkar v. Doe, No. 326667 (Mich. Ct. App. Dec. 6, 2016).
Minal M. Caron et al., “The PubPeer Conundrum: Administrative Challenges in Research Misconduct Proceedings,” Accountability in Research (2024),https://doi.org/10.1080/08989621.2024.2390007.
Ibid.
Ibid.
Sarkar v. Doe, No. 326667 (Mich. Ct. App. Dec. 6, 2016).
Ibid.
Ibid.
Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
Doe v. Cahill, 884 A.2d 451 (Del. 2005).
Ibid.
Sarkar v. Doe, No. 326667 (Mich. Ct. App. Dec. 6, 2016).
Ibid.