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Home Back Issues No. 44: Stop Media from Publishing Leaked Results

Sep 06

No. 44: Stop Media from Publishing Leaked Results

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Can I Stop the Media from Publishing Leaked Results of My Research?

Reader Question: I have been keeping some of my lab's exciting research results confidential until I can announce them at the annual meeting of our specialty in six months. However, I now find my post-doc has been dating a local newspaper reporter and has told her the whole story. She and her editor want to publish this science news scoop right away, whether I cooperate or not. Do I have any legal power to stop them? What should I do? Should I alert any top brass on campus?

Expert Comments by Karen Hersey, LLB & Stanley Kowalski, PhD, JD

Karen Hersey, LLB, retired senior counsel for intellectual property at the Massachusetts Institute of Technology (MIT) and currently a professor of law and senior scholar in residence at Franklin Pierce Law Center, Concord, NH. Stanley Kowalski, PhD, JD, is director of the International Technology Transfer Institute at Franklin Pierce Law Center and serves on the editorial board of the ipHandbook at www.iphandbook.org.

The answer depends on whether there’s a non-disclosure agreement (NDA). If there’s no NDA, you have no real legal power or authority to stop publication. However, if the university/PI and/or the post-doc have signed an NDA, you can stop this information “leakage” by notifying both the reporter and the newspaper as to the confidential, and protected, nature of the information. If the reporter and editor fail to desist, you can seek an injunction to stop them.

In the absence of an NDA, there still are at least three actions you can take:

  1. Look into whether the post-doc’s actions would violate the university's research policies/guidelines. His or her actions may constitute academic misconduct (although probably do not rise to the level of misconduct in science). In any case, the post-doc does not have authority to copy and distribute data that probably belongs to the school (although whether your institution has a data policy is another issue). You should, in any case, go to your department head or dean and the department head/dean needs to instruct the post-doc on how to properly manage university information.
  2. The school should tell the newspaper that your and your laboratory people cannot and will not substantiate the story. Further, if written material has been handed over to the newspaper, the university can claim ownership and demand its return (unless it's a state university and the state's open-document laws don't protect the information). Whether any written information is protected or not, the school should make sure the newspaper editor knows that the research results are not ready for publication and that if the newspaper proceeds it will be publishing non-validated, unsubstantiated science from a secondhand, non-credible source (the girlfriend). Of course, you yourself are under no obligation to respond to any inquiries from the newspaper and, in fact, should not.
  3. If you wish eventually to file a patent based on the information, filing a provisional patent application is one way to avoid losing a patent (a provisional application establishes priority of invention and keeps the results patentable in the event of subsequent public disclosure); but a provisional patent application won't help the PI who wants to control and/or delay the publication of the research findings per se.  Without an NDA, the best initial action would be to prevent publication in the first place, and the most prudent course might include filing a provisional patent application, depending on the nature of the findings.  Clear and open lines of communication with the school’s technology transfer office (TTO) will be of enormous value to any PI facing such a dilemma. Get to know your TTO colleagues; they are there to help.

> Read and submit comments

Expert Comments by Reporters Committee for Freedom of the Press

Lucy Dalglish is the executive director, Reporters Committee for Freedom of the Press, Washington, D.C.

The answer, in all likelihood, is No, you cannot block the media from publishing the information. That would be a prior restraint on publication. The U.S. Supreme Court has never upheld a prior restraint on the press. (Or anyone else, for that matter.)

However, if this were false information, you could sue for libel after the fact (of publication).

If the information were stolen by the reporter, you could bring theft charges after the fact (and likely do so even before it's published, if you have proof).

If the information is a trade secret, your attorney could pursue legal action against the person who knowingly took information to which he or she was not entitled.

But if the reporter is the unwitting, lawful recipient of information (i.e., didn't ask someone to steal it, didn't steal it herself, or didn't engineer the appropriation of the material in any way), there's likely nothing you can do to the reporter or stop the publication.

The Supreme Court has hinted that the only time it might approve a prior restraint is in the most extreme circumstances, something that could result in physical harm to someone.

> Read and submit comments

Editor's Note: The New England Journal of Medicine (NEJM), one of the highest-regarded periodicals in bioscience, is famous for a very strict policy on prior dissemination of key content from articles PIs hope it will accept and publish. In short, they take a very dim view of any publicity prior to their publication of the item, and often turn down submissions which have somehow received advance spotlighting. (See their "Embargo Policy")

Expert Comments by the New England Journal of Medicine

Karen Pederson Buckley is the Media Relations Manager of the New England Journal of Medicine. Editors at the New England Journal of Medicine (NEJM) review the circumstances in cases such as this.

A Journal's Policy

Editors at the New England Journal of Medicine (NEJM) review the circumstances in cases such as this.

If the leak is not careless or deliberate, the editors are likely to publish the article. If it's determined that the PI's careless behavior led to the leak, the editors would probably pull the article and remember the case, should the PI submit a future manuscript.

These decisions are made on a case-by-case basis. Like all policies, there's room for judgment and interpretation. Among the relevant considerations in deciding whether pull the article (if it's not already in print) and work with the PI again is the answer to such questions as: Who was at fault? How did the leak occur? Was the PI careless?

In this case, where a post-doc leaked a PI's NEJM article manuscript to a paramour who's a member of the press: If the PI left the manuscript laying around where anyone could have access to it, that would be careless behavior in the editors' view.

Bottom line: NEMJ expects PI authors to secure their information until the embargo date for its publication.

Comments (12)
Research Communications, University of North Carolina at Charlotte
written by James Hathaway, August 23, 2010
You probably don't have any legal way to prevent the story from occurring since the story was legitimately acquired through a legitimate source (your postdoc)who knew he was talking to a reporter. However, without your cooperation or the cooperation of anyone else from your lab, the reporter doesn't have a very good story (unless they want to take your hostility to publication as sign that there is something suspect going on). A better tactic is to try talking to the reporter or the editor and pointing out that this will be a better news story once the results are announced (or, better, published in a peer-reviewed journal) and that you would be willing to give an early interview with the clear understanding that this is when the story will appear. A responsible newspaper should be willing to wait until then -- among other things, to make sure that they are not over-hyping a research result. In the past, the reporter might have been eager to publish in order to avaoid being scooped by competing papers. In today's market, however, where even the largest research results often go without coverage at publication, the pressure to get the scoop is considerably less. I would advise talking to your institution's media relations office and letting them handle the reporter's editor. They probably already have an established relationship and can work out an equitable solution.
written by Denis English, Ph.D., August 23, 2010
yI assume you are writing from a country outside the United States of America because you are apparently a lab director and as such a well-educated person. Every well-educated person in the United States knows, or should know, that you cannot stop the newspapers or anybody else from publishing anything they want to prior to publication. The well-known prohibition of stopping anything from being published before it in fact was resulted from an item in the constitution of the United States often referred to as the First Amendment in the Bill of Rights. Anyone or any organization can publish anything they want. If what is published is false or damages you in some legally sustainable manner, you would be able to sue the newspaper after the publication appeared for the damages you sustained. You may even be able to get a judge to grant a temporary, very temporary, restraining order to hear your arguments. If the judge thought that the publication was probably going to damage you legally, he or she would not prohibit the publication but may warn your opponents that they may be liable for injuries you sustained from their publication. Uhnless you left something out, you shall sustain no legal injury from the news report. You cannot fire your postdoc for speaking out either unless that was a written condition of his or her job description. The reporter is merely doing her job; reporters collect accurate and interesting information ANY WAY THEY LEGALLY CAN. FOrtunately, no court can stop any newspaper in the United States from disseminating that information.
written by Pierre Mallia, August 23, 2010
Once this has occurred and a member of your team inopportunely made a mistake - and we all learn from these mistakes, it may be worth while considering the damage of not cooperating. Can we keep results confidentail if they carry significant results? Can this be considered ethical. You may bargain with the ditor and tell him that you want to make sure your results are valid, if this be the case, and offer him an interview. Another option is that you may acutally comment saying that this way to reveal results is not your way of doing things, that yes you do have results to publish whcih may still need confirmation, and that you will be going public on such and such a date. This may even generate interst in your presentation.
written by Gossipmonger, September 07, 2010
The loose tongues in this case do not surprise me, only the subject. Most labs I have directd were "hotbeds" (some of you will get the pun) of rumor and gossip.Favorite topics: who gets what salary and who is dating whom. "Research results" ranked dead last as a target of prurient interest. PS: why not mentor the postdoc to keep his mouth shut about results; he will cetainly have to learn to do so if he ever signs a "confidentiality" agreement.
Rare Bird
written by Give thanks, September 07, 2010
Actually, it's so hard to find a date interested in discussing my research that I think the posdoc should be happy he stumbled upon one such. The Hollywood ending: she gets the Pulitzer and he gets the Nobel.
Best practices for post docs
written by Concerned researcher, September 07, 2010
I don't have legal advice but it seems as though the post doc in question is more concerned about the paramour's career than his or her own. Leaking the information was simply bad form. Were I the post doc I would worry about my reputation as a collegial member of my discipline at this point. Personally, I would never work on any project with this type of person
Research Lab Director
written by Neuroscientist, September 07, 2010
Any postdoc with an iota of common sense knows better than to talk with a reporter- even one he is dating. He was either stoking his ego or sabotaging the laboratory, as the news media are notorious for publishing anything and everything, even information that is harmful to an individual, a patent, or an organization. In this case, I would probably fire the postdoc on the spot, as he can never be trusted again.
written by Biotech COO, September 07, 2010
We do not know how the leak happened. It might have been a lot more innocent than what the previous comments assumed. It could be an overenthusiastic: "I'm so excited, we just tested this new line of stem cells and were able to revert spinal cord injury in our mouse models. This will make sure an exciting paper!" that the girlfriend just took to the bank. The fact that the PI is aware of the leak pre-publication suggests his post-doc might have realized the problem and tried to fix it.

We had a number of interactions with the media throughout the years, and usually, they much prefer a quality article and not burn one of their potential sources of future good stories, rather than publish right away (unless this is a huge story and they are afraid of being scooped). Typically, we were able to negotiate an embargo on our own stories that partially leaked ahead of time, in exchange for a good interview and an exclusivity. We promised to only talk to them, and allow them to publish the story on the same day it is being released officially to the public, so they beat potential competitors to the punch (either the day we present the data or the day we send the official news release on the wire). We never had a journalist say no. Also, if this is a local media, it is bad politics for them to anger one of the local stars. Unless you burned that bridge already, I would try to negotiate (as some previous posters suggested) a timing of the disclosure that would be more appropriate.
Provisional Patent Filing
written by Dr. Fred, September 07, 2010
If the work has commercial value, it is imperative that you file a provisional patent application as recommended by Hersey and Kowalski or you will lose all foreign patent rights depending on what is disclosed. The US rights are safe for only one year from the disclosure, and the provisional patent application dies at the end of one year.
written by Blame the victim, September 07, 2010
Why is everybody blamng the victim--the postdoc. I defy any PI to say he/she has never engaged in "pillow talk" with a "significant other"--especially if there had just been a significant breakthrough in the lab that day. No, dear colleagues, the fault is not the enthusiastic postdoc's. He/she was betrayed by the poor ethics of the paramour of the press. If the truth be revealed, I daresay we will one day discover there are even "groupies" who cuddle up to Nobel Laureats--hoping to sell their story to British tabloids. Wake up; we live in a media age!
Boston titillator
written by Paul Revere, September 07, 2010
A friend of mine who worked at NEJM intimated the inner workings were a whirlpool of intrigue, gossip, and heirarchy of secrets. So, the "exposed" postdoc should not feel so bad.One day, an ex-staffer of the Holy Journal will write a "tell-all", and then the linen will be hung out to dry.
Research Communications
written by PIO, September 08, 2010
Contact your public relations/public affairs person at the campus immediately. These are the people who should know how to negotiate this with the appropriate editor at the newspaper and who -- trust me -- have probably managed similar situations. They knew the style of the newspaper, they know the reporters, they know the editors and they know what can and cannot be requested and even how to request it. It's what they do for a living.

Re-read the James Hathaway and Biotech COO entries above.

This is also a grand opportunity for you/other PIs, and research deans to re-inforce to everyone in the lab the primary rule of research communications: do not talk about studies that have not been published. Not on the elevator, not on a boat, not in a tree, not in a bed. There are limited exceptions (presentations at conferences, for example) and even those have qualifiers when media might be present or if you receive calls from the media after the fact.

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