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Predatory publishers that exploit authors by charging them fees to publish in entirely profit-driven journals with no editorial rigor have become a disconcerting byproduct of the open access movement. Many are difficult to spot, going to great lengths to convince authors to submit work to their journals, including advertising false editorial board information, indexing claims, and impact factors. These deceitful operators are conning authors out of their work and threatening the integrity of the open access scholarly communication landscape.

Despite the dangers of predatory publishing schemes to the scholarly community, historically, there has been little done to admonish predatory publishing practices on an official level. However, that’s starting to change. In March of 2019, upon review of numerous allegations of predatory practices against the publisher OMICS International, the U.S. District Court for the District of Nevada ordered OMICS to pay $50.1 million in damages. The case marks one of the first judgments against a publisher accused of predatory practices and could be a signal of greater publisher oversight to come.

In his article published in the Journal of Scholarly Publishing,Predatory Journals on Trial: Allegations, Responses, and Lessons for Scholarly Publishing from FTC v. OMICS,” Stewart Manley lecturer for the Faculty of Law at the University of Malaya unpacks the arguments of the case and its broader implications.

In the interview below, Manley discusses his article and the key takeaways of the FTC v. OMICS case for publishers, editors, scholars, and universities.

Q&A with Stewart Manley

Can you briefly overview the case that your article looks at where the U.S. FTC sued open access mega-publisher OMICS International?

SM: On March 29, 2019, the U.S. District Court for the District of Nevada ordered Srinubabu Gedela and three U.S. subsidiaries of his mega open access publishing company, OMICS International, to pay $50.1 million for misleading authors about article processing fees, the indexing and impact factors of journals, the quality of peer review, and the involvement of well-regarded scholars in academic conferences. The lawsuit was brought in 2016 by the U.S. Federal Trade Commission after it had received numerous complaints from researchers. One practice that in particular incensed authors was when OMICS notified them of article processing charges only after the manuscripts had been accepted and then refused to allow the authors to withdraw their submissions.

SM: FTC v. OMICS appears to be the first FTC case against a so-called predatory publisher. In its March 29 judgment, the District Court turned to legal precedents that were not identical in facts to the OMICS case but still dealt with similar behavior. For instance, when addressing the adequacy of OMICS’ website disclaimers about journal impact factors, the District Court cited as legal precedent a 2015 Nevada case involving companies that misled consumers about obtaining government grants. Although not concerning academic journals or conferences, the companies in that case also used disclosures in their materials, and thus the case established legal precedent for the principle that simply having a disclaimer is not adequate if it does not “alter the deceptive net impression.”

In your article, you say that for this case “the burden of proof, lies in establishing deception,” can you explain this briefly?

SM: In the OMICS case, the FTC had to prove two elements: that OMICS’ business practices (1) were unfair or deceptive and (2) were in or affected commerce. Because OMICS’ business clearly affects U.S. commerce, the key for the FTC to carry its burden was in proving deception (unfairness was not at issue). It successfully did so by providing evidence of consumer complaints, screenshots of deceptive representations from the OMICS website, and expert statements about the norms in academic publishing such as the time for peer review, the expectations around article processing charges, and use of the term “impact factor.”

How could the case against OMICS be a turning point in open access publishing in terms of preventing predatory practices?

SM: FTC v. OMICS has the potential to impact the practices of questionable publishers of academic research by making them think twice about following in OMICS’ footsteps. Deterrence is most commonly associated with criminal matters but it also can apply to civil cases like FTC v. OMICS. The monetary judgment was high ($50.1 million, which was all of OMICS’ net earnings over a six-year period) and the order against OMICS was extensive. In addition to enjoining OMICS to cease its deceptive practices, the District Court also required OMICS to cooperate with future FTC requests for information, submit compliance reports to the FTC for twenty years, and deliver a copy of the judgment to all its managers for five years.

On the other hand, other dubious publishers will likely not be deterred if OMICS wins on appeal (it has promised to appeal the judgment) or if OMICS refuses to comply with the order. In any legal case, winning is only half the battle; enforcing a judgment is just as important and can be challenging when the defendant is from a foreign jurisdiction (OMICS is based in India).

In your article you outline key takeaways from this case for publishers, academics, and universities? Can you briefly overview those takeaways?

SM: The key takeaways for publishers are:

  1. If publishers charge fees, they should disclose them prominently and make sure authors have agreed to them (in writing) before submitting articles. OMICS did not adequately disclose article processing charges.
  2. Post manuscript withdrawal policies and any associated fees. OMICS’ practice was to inform researchers of withdrawal policies only after a researcher requested withdrawal.
  3. A publisher that uses an “impact factor” other than Clarivate Analytics’ should say so conspicuously. OMICS at times explained that its use of “impact factor” referred to a calculation from Google Scholar, but did so only in fine print at the bottom of a long web page.
  4. Peer review processes should be spelled out in detail. Unusual peer review (such as a reviewer with no comments or completion of review within a few days) should be explained to the author. Peer reviews arranged by OMICS sometimes took mere days and peer review policies lacked details.
  5. Publishers should obtain written agreement from members of editorial boards and from editors who are elevated to higher posts such as editor-in-chief. OMICS included editors on its website who had not agreed to serve or who had not agreed to become editors-in-chief.
  6. Conference organizers should obtain written consent before publicizing the participation of conference speakers or attendees. Attendees must be notified immediately of any speakers who withdraw. OMICS failed to obtain permission from scholars and industrial leaders to include their biographies in conference materials.
  7. Obtain approval to use the logos of indexing services like PubMed and Scopus and ensure accurate representations of a journal’s indexing. OMICS misrepresented that some of its journals were indexed in prominent services.

The key takeaways for authors are:

  1. Resist the flattering invitations from questionable publishers. Do your due diligence to determine a journal’s credibility.
  2. Be careful about recommending and serving on the boards of journals with which you and your more experienced colleagues are not familiar. Scam journals will use your credibility to raise theirs.

The key takeaways for universities are:

  1. Look into where the money that funds publishers like OMICS comes from. $50.1 million was transferred, primarily by academicians, to OMICS over six years. Are fees paid from grants, and if so, is this a proper use of grant money?
  2. Train researchers to better evaluate the quality of journals and conferences.
  3. Consider how institutional policies may encourage or discourage academics from publishing in so-called predatory journals.