Can Your Journal Protect Its Peer Reviewers?

Date: July 26, 2017

By Eric Schlam, Esq. 
Formerly Counsel with WTP, Eric recently joined IBTS - Institute for Building Technology and Safety as its General Counsel.  We wish Eric the best at his new position. 

Originally published by ASAE.

Although associations that publish scholarly journals rely on confidentiality to ensure the integrity of their peer review system, the law has yet to definitively protect peer reviewers' identities and comments. Here's a brief look at where the courts stand on the issue.

Peer review is essential to scholarly publications, many of which are published by associations. It allows for candor and a free exchange of ideas that ultimately result in better procedures, more refined research, and often a safer public. Inherent in the process is the confidentiality of those who participate and the comments they make.

The idea of peer review confidentiality is well established and protected by most state statutes in the context of hospital administration, where the process allows medical teams to privately review and assess decisions that doctors have made in treating patients. But protections for peer reviewers of journal articles and for their unrestricted feedback have not been codified. This has created a problem for associations and professional societies that publish scholarly journals: Although they recognize the need for confidentiality in the peer review process, they currently lack well-defined jurisprudence to support it.

The issue frequently arises in litigation when a party serves a subpoena on a scholarly journal to get at the contents of peer reviews and even learn the identities of the reviewers. The publisher often moves to quash the subpoena to protect reviewer confidentiality, but there is no statutory support to do so in the journal peer review arena. Consequently, journals and medical societies defending against these subpoenas have to rely on unrelated federal or state legislation, as well as common-law support for confidentiality.

Legal Approaches

Several cases illustrate the varying approaches that publishers and courts have taken on the question. A few examples:

Peer review analysis privilege. In Block v. Abbott Laboratories, the plaintiff issued a subpoena that sought all documents and reviews relating to a published article and letter to the editor. The journal resisted, claiming a "peer review analysis privilege" and asserting that communications between authors and editors are confidential, as are reviewers' statements. The requestor did not challenge the motion to quash, and the court granted it without any detailed analysis.

Adherence to professional standards. In Cukier v. American Medical Association, an author served a subpoena on the AMA, seeking the identity of a person who made a statement to the Journal of the American Medical Association (JAMA) that the author had a financial interest in publication of a manuscript. The author denied the allegation, but the manuscript was declined for publication.

JAMA filed a motion to quash the subpoena, citing confidentiality of the peer review process and its commitment to abiding by the strict standard of confidentiality articulated by the International Committee of Medical Journal Editors (ICMJE). Specifically, that standard mandated that editors "must not share information about manuscripts [and] criticism by reviewers . . . to anyone other than authors and reviewers." ICMJE further suggested that "requests from third parties to use manuscripts and reviews for legal proceedings should be politely refused, and editors should do their best not to provide such confidential material should it be subpoenaed."

While still protecting the confidentiality principle, the court took a different approach entirely. It determined that JAMA editors were "reporters" under the Illinois Reporters Privilege Act, and so they could not be compelled to disclose the identity of the peer reviewer who made the statement.

Balancing test. The issue also arose in Solarex Corp. v. ARCO Solar, Inc., a patent infringement case. The plaintiff, ARCO, sought the identity of several peer reviewers who had commented on a journal article under consideration for publication. The court implemented a balancing test, weighing ARCO's interests against those of the American Physical Society, which published the piece. The court quashed the subpoena, concluding that if the reviewers had believed their identities would be revealed, they would not have been as forthcoming with their criticism.

Seeking Clarity

As these cases show, the law has yet to provide a definitive answer on the question of journal peer review confidentiality. While entities in the medical profession, such as ICMJE, have produced strong recommendations, and although courts appear inclined to embrace the idea of nondisclosure, the legal path to that protection remains unclear.

What does this mean for association journal publishers? When confronted with subpoenas that seek to pierce the veil of secrecy surrounding peer review, publishers must recognize that—while there is some favorable case law supporting confidentiality—they may still need to engage in creative legal maneuvering to prevent disclosure. There are clearly many important policy reasons to support confidentiality, and future jurisprudence may well evolve in a way that ensures adequate protection of peer reviewer identities and their comments during the article review process.