Lies, libel and layered voice analysis

Two Swedish scientists have been threatened with legal action after publishing a scientific article sharply criticizing what they consider "charlatanry" in detecting deception. Nemesysco, a company named in the article wrote to the researchers that they may be sued for libel if they continue to write on this subject in the future. As a response to another legal threat the publisher has removed the online version of the article. Trying to remove information from the net is often counterproductive ("the Streisand effect"), and now copies of the article circulate online. Nemesysco has inadvertently drawn attention to the issue of the article, likely to their own detriment.

But can a scientific publication be libel? Does libel law serve a moral purpose?

(I'm not a legal scholar, so this will be looking at the issue from an ethical perspective rather than a legal one.)

Reputations

Reputations are important for living a functioning life (or functioning as a corporation): they determine if others will associate with us and how much they will trust us. Deliberate damage to reputations should not be taken lightly. It can cost money, friendships, careers and more. At the same time the value of reputations stem from their truthfulness. If reputations cannot be trusted they are worthless as tools for finding reliable fellows. Hence there is a strong need to be able to update reputations based on fact, and to some extent, opinion. If erroneous reputations cannot be updated and corrected there is no point to the whole system.

Hence there is a need to balance the protection of reputation with the need to criticise them. Defamation law serves this purpose, at least in theory. Libel law deals with making false and malicious statements (in writing and online media) that affect someone's image. From a moral standpoint most would agree that libel by this definition is always (or almost always) wrong.

The paper

The paper by Lacerda and Eriksson is a general attack on the plethora of overstated or unfounded claims for deception detection devices that at the very least represent bad business practice, and in some cases likely is deliberate charlatanry. Yet many such systems are widely used and appear to rake in money. In the case of Nemesysco the paper describes the technology (based on the patent), argues that there are severe discrepancies between the impressive claims the company makes and the code, weak if any evidence that it detects deception and good reasons to suspect that the software is sensitive to arbitrary artifacts in the sound recording system.

Are these claims false? At least, it seems that they could be independently checked. There is also a moral obligation to demonstrate made claims. If Nemesysco is in the right it would also benefit them
to demonstrate that the system actually works, that it does indeed use the complex nuances implied in the adverts and that it is not sensitive to noise. If the authors can show that Nemesysco's claims are wrong, then they got an absolute legal defense regardless of whether their intentions were malicious.

The perhaps most problematic part of the paper is a section about the nature of the company and its a sole employee, giving the impression that there is something fishy going on. This is bordering on an ad hominem argument. Even if this part is true it might infringe on the privacy of the proprietor (something that libel law also recognizes). However, given that the correctness of the academic and commercial claims and impressions made in public have a strong bearing on the issue of the trustworthiness of the company, privacy may not be a strong defense. In any case, this section veers more into the realm of journalism than science.

Can scientific papers be libelous?

A scientific paper could be libel, since there are both untrue and malicious papers out there, and some of them have indeed damaged reputations. Peer review should reduce the risk by detecting bad methodology and maybe moderating papers, but there are limits to what it can do (especially if reviewers share the author's views). Yet the scientific ethos aims at disinterested truthfulness, so clearly libel is something far from a proper scientific paper.

However, not all (perhaps very few) proper scientific papers are purely disinterested. If a paper reports that something causes harm, it is commonly interpreted as urging corrective action. Sharply written papers are sometimes needed. Even deciding what area to investigate can be a moral act: deciding to analyze claims of suspected charlatans will likely produce results that might be of public interest and importance, yet harm debunked charlatans. If the results are true, then there is no ground for libel, legally or morally.

In the case of deception detection there is also a strong public interest aspect. Had this been a journalistic article it would probably been able to claim qualified privilege since it deals with a
matter of public interest: the Nemesysco system is used in 25 British councils to detect benefit fraud. If (as I and others have argued) such systems mainly work by deceiving users, there are serious grounds for moral concern and questions of how public money is spent. Even the nature of the company itself might properly be scrutinized in a journalistic article, since there may be moral or political concerns with who provides such technology.

Libel tourism

The key problem in this affair is not the contents of the paper, but the shortcomings of UK laws. The company is in Israel and the researchers are in Sweden but the publisher is in the UK. UK law allows sueing the publisher for libel, and the burden of proof is reversed: in a court case the publisher must prove that the statements of the paper are true (unlike in most jurisdictions, where the plaintiff has to demonstrate that statements are untrue and malicious). While it seems likely that this could be done in principle, it would be a costly and time-consuming affair. Hence it is to the advantage of the publisher to avoid the risk by withdrawing the paper. The total cost to Nemesysco was likely just having a lawyer write up a few suitably threatening letters.

The company is not alone in using the UK system to silence critics. "Libel tourism" has become popular, and since a sizable fraction of publishing passes through the UK almost anybody is vulnerable. For example, relatively few scientific journals would be outside the threat of UK litigation by Nemesysco.  Laws not intended for use in a globalized world of mass communication now have global adverse effects.  It is similar to how in many countries even spurious claims that websites contain illegal material can be used to shut them down, since hosting companies prefer to avoid any risk of lawsuits. The result is chilling effects on free speech and unfair censorship.

Since charlatans always have an interest in preventing their reputations from being truthful they will strive to bend the system to their ends. The UK libel law system hence helps charlatans worldwide, undermining the intended purpose.

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2 Responses to Lies, libel and layered voice analysis

  • Dennis Tuchler says:

    How does one value speech in a free society? As scholars have pointed out, there are two tensions that have to be taken into account in asking this question: Information vs Privacy and Information vs Reputation. Scientific papers are a quintesential example of informative speech that has value for the population — even if a particular paper is erroneous or flat-out wrong, and reliance on its information can be dangerous to people (e.g. patients). The cure is classically seen as more information, criticizing the previous paper for error.

    The threat of a libel suit is expensive. Even if the libel laws favor speech, preparation for trial is expensive, often in terms of tension on the part of the defendant as well as legal costs and possible cost in terms of lost business or reputation. That is why it is very hard for a US plaintiff in a libel suit against “public figures” to survive a motion to dismiss. The US puts a very high value on informative speech, even when the information is opinion rather than “fact”.

    Finally, the ethics of bringing a libel suit should turn on the purpose of the suit. Is it to protect the business of the plaintiff by squeezing the present defendant’s purse and threatting future commentators on the plaintiff’s business? My bias is always to suspect that such suits as mentioned in the post are of that sort. Perhaps such a bias should be built into libel law by the imposition of a large penalty on losing plaintiffs.

  • Keep in mind that there is generally very stiff competition for grants and funding for scientific research. As such, the scientists vying for such funding may be tempted to defame or liable their contemporaries/competitors. There needs to be a safe harbor for peer review and legitimate criticism, but malicious speech disguised as a peer review all critique should be just as open to civil remedy as anything else.

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