The Volokh Conspiracy
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Prof. Francesca Gino's Libel Claims Against Harvard Business School and Data Colada Dismissed
From today's decision by Judge Joun (D. Mass.) in Gino v. President & Fellows of Harvard College:
Professor Gino is an internationally renowned behavioral scientist, prolific author, researcher, and teacher who has received many awards and considerable media attention for her academic research regarding people's decision-making. She is currently employed by Harvard, as a tenured professor at the Harvard Business School ("HBS")….
The Data Colada Defendants are a trio of male professors and behavioral scientists who, since 2013, have published a blog called "Data Colada." In July 2021, the Data Colada Defendants approached HBS with concerns about perceived anomalies and alleged fraud in the data of four studies in academic articles authored by Professor Gino….
On June 13, 2023, … [HBS] Dean Datar informed Professor Gino that she was being placed on unpaid administrative leave for two years, that she would receive no salary or benefits after July 31, 2023, and that he would request the commencement of tenure revocation proceedings ….
Gino sued Harvard for breach of contract, defamation and related torts, and invasion of privacy, and also sued the Data Colada Defendants for defamation and related torts. The court allowed the breach of contract claim to go forward, based on allegations of various procedural irregularities in the way the Harvard investigation was conducted.
But the court rejected Gino's defamation claim. It concluded that Prof. Gino is a public figure, based on the Complaint's stating "that Professor Gino is an 'internationally renowned behavioral scientist, author, and teacher' who 'has authored or co-authored countless journal publications, business articles, and books,' 'has regularly presented her work at conferences and has been invited to speak at some of the most prestigious colleges and universities in the world,' 'has received numerous honors and awards' internationally, and has had her work 'covered in numerous media outlets.'" It then went to analyze the libel claims this way:
Retraction Notices
The Retraction Notices express HBS's concerns regarding the validity of the data in the four articles published by Professor Gino. The Retraction Notices disclose the bases for these concerns, including detailed appendices explaining the alleged data anomalies and disclosing the forensic assessments conducted. The ultimate conclusion expressed in these Retraction Notices is that, based on the data discrepancies set forth in the appendices, HBS "thus believe[s] the results reported … are invalid due to alteration of the data that affects the significance of the findings." As such, I find the Retraction Notices amount "only to a statement of [HBS]'s evolving, subjective view or interpretation of its investigation into inaccuracies in certain [data] contained in the articles," rather than defamation. Further, the Retraction Notices were "measured and professional" in tone, describing in detail the forensic investigation conducted and declining to directly accuse Professor Gino of data manipulation….
Regarding actual malice, Professor Gino has not plausibly alleged that the Harvard Defendants "either knew that [their] statements were false or had serious doubts about their truth and dove recklessly ahead anyway."
Announcement of Administrative Leave
Professor Gino premises her second defamation claim against the Harvard Defendants on HBS's publication of the text "ADMINISTRATIVE LEAVE" on Plaintiff's HBS faculty page, as well as Dean Datar's email on June 22, 2023, to Professor Gino's colleagues that announced Professor Gino's administrative leave status, while referring to research integrity and the research misconduct allegations.
While the FAC admits that Professor Gino in fact was placed on administrative leave, Professor Gino argues that "under Massachusetts law, even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with 'actual malice'"—meaning, in this context, "actual malevolent intent or ill will." But that "exception to the truth defense is not constitutional when applied to matters of public concern." … Where Professor Gino is a public figure, and the issue of research integrity and potential misconduct concerns her colleagues, the FAC fails to state a claim for defamation based on the Harvard Defendants' announcement of her administrative leave status….
The court also rejected the invasion of privacy against Harvard, which stemmed from the "announcement of her administrative leave on the HBS website":
Such a claim requires Professor Gino to "establish that the disclosure was both unreasonable and either substantial or serious." In an employment context, the information must be of a "highly personal or intimate nature" and a "legitimate countervailing interest in disclosure" must not exist.
Professor Gino's administrative leave status is not information of a highly personal or intimate nature, "such as matters concerning her health or her lifestyle." And, though the FAC does allege HBS never previously publicly announced a tenured professor's administrative leave status on its website, it cannot be said that there exists "no legitimate countervailing interest in disclosure." As Dean Datar informed Professor Gino, an intended purpose behind disclosure was to notify others that she would be "unavailable to engage in research, teaching, and mentoring and advising." …
The court likewise dismissed the defamation claims against Data Colada:
Defamation is a disfavored action for which the courts prefer summary disposition. This is especially so for matters of academic and scientific debate….
As with the defamation claims against the Harvard Defendants, the Data Colada Defendants' statements in both the December Report and the blog posts reflect "personal conclusions about the information presented," and they disclose the facts underlying their judgment that there was likely data fraud in the studies, see Conformis, Inc. v. Aetna, Inc. (1st Cir. 2023) ("[A]n opinion is not actionable if it merely draws a conclusion from disclosed non-defamatory facts")….
Professor Gino asserts that the Data Colada Defendants' statements "reasonably would be understood to declare or imply provable assertions of fact," thereby amounting to actionable non- opinion. Regarding the December Report, Professor Gino specifically argues:
Given all of the circumstances, including (i) the statement's title, "Evidence of Fraud in Academic Articles Authored by Francesca Gino; (ii) the statement's assertion that the December Report was "direct evidence" of "fraud" by Plaintiff; (iii) the implied statements that Defendants knew undisclosed defamatory facts, (including the suggestion that the "evidence" in the December Report was a "small subset" of what Defendants had collected); (iv) the authoritative tone (indicating that "individuals" had "approached" Defendants to help "reconcile" "concerns" about Plaintiff's alleged misconduct), the December Report is reasonably understood as a statement of fact: that Plaintiff had committed academic "fraud," and not non-actionable opinion.
While whether Professor Gino in fact committed academic fraud may be proved true or false, "even a provably false statement is not actionable if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts." In making this determination, I must consider "[t]he sum effect of the format, tone and entire content" of the December Report. "[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment." In contrast, if a statement is "not based on facts accessible to everyone" and the audience is "implicitly … told that only one conclusion [is] possible," the statement does not qualify as a protected opinion.
The December Report constitutes the Data Colada Defendants' subjective interpretation of the facts available to them, as disclosed in the December Report through its thorough discussion of the potential data anomalies observed in Professor Gino's four studies. As set forth in its title, the December Report walks the reader through "Evidence of Fraud in Academic Articles Authored by Francesca Gino"; it does not directly state anywhere that Professor Gino committed fraud. Nor does it state that data tampering definitively occurred, using cautionary language to couch any conclusions. See, e.g., [id. at 5 (data "suggests to us that these eight observations may have been altered" (emphases added)); id. at 18 ("we believe that these observations were manually altered" (emphasis added))]; see also Piccone v. Bartels (1st Cir. 2015) (holding that whether challenged statement constitutes provable assertion of fact requires considering "any cautionary terms used by the person publishing the statement").
In fact, the December Report explicitly acknowledges the limitations of its work and the possibility of conclusions besides tampering by Professor Gino herself. And while the December Report does allege the existence of other evidence of data tampering in Professor Gino's studies, the Data Colada Defendants do not indicate that they are "uniquely situated" to access this additional evidence, nor do they imply that they are "singularly capable of evaluating [Professor Gino's] conduct." Indeed, the December Report notes that the Harvard University investigators could and should consider Professor Gino's other studies themselves for additional evidence of tampering if so desired. And the statements about other potential fraud convey only the Data Colada Defendants' inference that, if a researcher's datasets over a decade show signs of fraud, other such examples may exist….
Further, distinct statements identified by Professor Gino—e.g., statements that individuals had raised concerns with the Data Colada Defendants, that the Data Colada Defendants tried to "identify some of the biggest issues," that they believe Harvard has access to files that could have verified or disputed their concerns—are not actionable because they are neither susceptible to defamatory meaning nor are they alleged to be false, as briefed by the Data Colada Defendants….
The four blog posts similarly evince that the Data Colada Defendants are "expressing a subjective view," based on facts that they disclose in the blog posts, "rather than claiming to be in possession of objectively verifiable facts." The posts analyze each study and the underlying data at length, describe how the Data Colada Defendants reached their conclusions regarding data tampering, and provide many screenshots from and hyperlinks to the primary documents from each study—including the allegedly suspicious data files. [Further details omitted. -EV]
Further, as noted above, Professor Gino's status as a public figure requires her to plausibly allege that the Data Colada Defendants spoke with "actual malice," meaning "knowledge of the statement's falsity or reckless disregard for its truth." Professor Gino argues that the Data Colada Defendants assert in the December Report and the four blog posts that they had "direct evidence" she had manipulated data, (1) despite knowing that data irregularities occur in behavioral science research with respect to data collection and handling, and (2) despite defendant Simonsohn's later concession that he had "no evidence" that Professor Gino had manipulated data—thereby "demonstrating Defendants' malice." These allegations are not plausible.
A plain reading of the December Report does not assert "direct evidence" of fraud by Professor Gino anywhere. Rather, the December Report reads, "We report direct evidence of data tampering in four different datasets from four different published articles," and it goes on further to caution the reader that, "although the evidence can, in most of these cases, rule out malfeasance by co-authors, it cannot definitively rule in malfeasance by Professor Gino. It may be that some research assistant or otherwise unnamed person/people was/were responsible for producing these anomalies." Professor Gino points out that, "as behavioral scientists at leading universities, Data Colada knew or had reason to know that Professor Gino works with research assistants and others and may not have been the person responsible for any perceived anomalies in studies she authored." Indeed, the Data Colada Defendants acknowledged that and took care to inform readers of this possibility. Nor do the blog posts declare direct evidence of data tampering by Professor Gino….
Jeffrey Jackson Pyle represents the Data Colada Defendants.
