Should I ask for permission from the journal before making available publicly the (anonymised) text of the evaluation I received from peers?

Question

The question says it all. To add some relevant information, I must note that

• I published some articles in national journals

• The level and the process of peer review in some of those national journals was quite low or even nonexistent; yet they claim to be double-blind peer-reviewed and are in the top of their field according to a journal list our Academy of Sciences use when evaluating research performance

• I intend to make available publicly the substandard reviews, or, in the case of non-existing external review processes, my correspondences with the handling editor on the internet

Now it seems obvious for me that no permissions will be given to me by the journals if I ask for it, so I'm not sure whether I should ask them anyway. But would that be a bad move; legally speaking?

Answer 1

Unless you signed a very peculiar publication agreement, you are under no obligation to keep the reviews your received confidential. Moreover, there is probably no issue with copyright infringement either. Publishing a modest amount of text, for the purpose of critiquing it, almost certainly qualifies as "fair use" of potentially copyrighted material. (This could, however, vary from jurisdiction to jurisdiction.)

So I think there is rather little legal risk of doing this. However, it sounds to me like a very poor idea nonetheless. In most academic contexts, the dangers of doing something wrong come less from formal legal repercussions than from the damage that may be done to your professional reputation.

Presumably everyone who has published in these journals understands the relatively lax nature of their peer review (having gone through the process themselves). Unless one or more of the journals has an undeservedly high reputation (which seems doubtful, since you describe them as "national"; prestigious journals typically have international contributors and audiences), publishing accusations of laxity against the journal are not likely to affect the journal at all. On the other hand, doing something like that can definitely get you a reputation as an obnoxious troublemaker, which can be extremely damaging to your career.

Answer 2

There is generally no need to obtain permission if you are intending to excerpt portions of a review as part of a critique. That would fall squarely under the "fair use" aspect of copyright law (at least in the US). An recent high-profile example of doing exactly the sort of thing you are asking about is the sexist PLOS ONE reviewer whose review said to get a male co-author: the angry author posted a few lines of the review, which was sufficient to get a firestorm going on social media.

I would advise against posting a lengthy review that you are not commenting on in detail, however. It is both a stronger argument and also a more defensible legal position to post only key excerpts, and a whole review only if it is very short and that is the point you are commenting on. If that critique of key elements then brings requests for the full review for context, then it would be reasonable to post the full review. While there might be some question about copyright in such a case, it would be a foolish journal indeed that would complain after your critique has already met a significant reception, as that would essentially guarantee a Streisand Effect backlash.