What Happens if I Get Sued for Publishing My Research?
Alberta does not have an anti-SLAPP law, i.e., legislation to protect those who speak out in the public interest from the costs of protracted litigation initiated by powerful interests. I can think of two Alberta examples of why anti-SLAPP is needed that I would like to disclose in an upcoming research paper. My problem is that if I name the plaintiffs in those strategic lawsuits, I will certainly be sued.
I had a vague sense that I would be afforded legal representation and indemnity by my university if I was sued in these circumstances. But when I made some inquiries about protections afforded to academic research – both inside and outside my particular university – I found this assumption to rest on shaky ground.
In my limited correspondence with others on this issue, I was told of the following cases (among others) at Canadian universities:
- A university law professor who posted a blog critical of a lawyer’s court room work was accused by that lawyer of violating the law society’s code of professional conduct and had to respond. The university took the view that professional membership was not connected to his academic duties and thus offered only limited and qualified coverage.
- Two professors were served with a subpoena to disclose confidential records. Rather than defend the action, the university told them to hand over the documents. The university finally stepped in to defend them but only after two years of wrangling and public embarrassment.
- A professor, listed as an expert on the university website, was interviewed and quoted in a news article. The comments were accurate and fair. The professor nonetheless was sued by a politician who was the subject of his comments. The university initially refused to provide legal representation but eventually relented after external pressure.
These cases are not about rogue professors, irresponsible behaviour or activities outside of the course of employment duties. These are all cases of professors doing the job they are obligated and encouraged to do, i.e. to engage in and enrich discourse in its various facets on matters of public interest.
In fact, it is worse than that. The role of academic freedom in society is to question and critique without fear of consequences. But for all the lofty talk and platitudes about academic freedom that permeate the university environment, I can find no university policies or provisions in collective agreements that offer any safeguards to academics who are sued.
University administrators are left with maximum flexibility on whether to provide legal representation or indemnity when a faculty member is sued. The university gets the benefit of a heightened profile through academic commentary/research disseminated in the community but without the obligation to help out when things go south.
The only effective way to address this problem is via collective agreement between academic staff and the university. I propose that academic unions negotiate the inclusion of specific language into their collective agreements under the Academic Freedom title. Here’s a shot at what that language might look like:
The university will pay the costs of legal representation of, and indemnify for any losses incurred by, members in any legal or administrative action or proceeding directed at research data, or the dissemination of ideas, opinions, or commentary, in one’s area of competence or expertise, in the course of or related to employment as an academic.
Please share any thoughts, experiences and suggestions you may have in the comments section or, if you prefer, by email.
Interesting and surprising dilemma. I suppose like you, many of us just assumed this was part & parcel of the university’s core function to protect academic expression and the critique of society etc.
A couple of comments:
1) What did/does a typical employment agreement with a faculty member say about this – I presume they sign some kind of contract when they start, and does it address this type of thing, or at least describe what constitutes academic freedom?
2) While unions for full-time, tenured faculty might have some success with this, I doubt there would be similar leverage for part-time/sessional or contract faculty unions, even though more and more they represent a larger portion of the teaching and research faculty.
3) I recall talking to my faculty union about the lack of clarity on IP rights for academic work and research about ten years ago – blank stares from the stewards and reps. Not sure this issue will resonate any better, especially since it likely involves the university saying that agreeing to such a policy will require an increase in dues to cover the indemnity insurance policy.
I was counsel for a major university for over seven years. During that time, I had “academic freedom” thrown in my face more times that I care to remember. While I respect the principle of academic freedom, your right comes with responsibilities, one of which is to accept the consequences of what you say or publish. Too many academics forget that part.
During a public meeting a few years ago, a tenured professor said that I was a liar and that I was incompetent. Is this academic freedom or slander? If what he said was true, then it’s his academic freedom to point this out. Since it wasn’t true, it was slander plain and simple. But I shrugged it off.
Academic freedom is not a blank cheque to be obnoxious or malicious. If you attack a major corporation in your publication, you may get sued. Why should your employer (a publicly funded university) defend you? Did you clear your research with them before you published? No, of course not–academic freedom!
And so it goes.
The collective agreement for full-time faculty at my university defines “academic freedom” as the “right of reasonable exercise of civil liberties and responsibilities in an academic setting.” Note the words “reasonable” and “responsibilities” in that sentence.
I agree with the previous comment that the faculty association should address this issue. Negotiate some form of coverage for your members either with the employer or through an insurance policy. Don’t assume that your university will defend you.
Because academic freedom isn’t free, it comes at a price.
But would you agree that reasonable research endeavours like the kinds mentioned in my post should be covered?
While the hue and cry of academic freedom might be a last refuge of a scoundrel in some cases, the same could be said of universities that require us to do research and encourage us to speak to the media but then run for cover when someone threatens to sue.
Thanks for those comments. I looked at a few academic staff collective agreements across the country and not surprisingly there is no mention of this issue. Rather lots of vague language about academic freedom
My understanding talking to someone with mor experience on these issues is that universities are resistant to dealing with the matter in collective agreements. Moreover they are all covered under the same group coverage (which probably calls the shots on this)
I understand the blank stare comment. I managed to maybe get this out on the agenda in our current negotiations but otherwise I did not hear from union officials when I posted a similar blog on an internal forum.
I agree completely that most research as described in your post should be protected through academic freedom. But some professors think they can speak or act with impunity. That’s not what academic freedom means.
Just as your constitutional rights can be restricted in Canada through reasonable limits, so too can academic freedom. But I am sure many would disagree with me.