Philadelphia-based Franklin Prescriptions specialises in
the market for infertility drugs. It does not sell online and its
website does not even include an email address. But in October
2000, a screenshot – or "web-grab" – of its site appeared alongside
a New York Times article, headlined "A Web Bazaar Turns Into a
Pharmaceutical Free for All."
The article described in detail "unscrupulous" and "cloak and
dagger" websites that take email orders for controlled infertility
drugs, in particular without requiring a doctor's prescription.
It also talked of "unscrupulous online pharmacies" that
"intentionally muddy the water by operating multiple sites from
numerous places, all of which can be shut down at a moment's notice
and moved elsewhere."
The article did not refer to Franklin Prescriptions, and its
address and telephone number were deleted from the screenshot; but
neither did the article identify Franklin as a legitimate practice
rather than an unlawful one.
The company, which had been building its reputation for over 30
years, complained about the implication of the image from its
website being used with the article. A correction appeared in The
New York Times the following day, clarifying that the image had
been used in error, that Franklin did not sell drugs online, and
that a prescription was required for any purchase. But the pharmacy
sued for defamation.
In March 2003, a jury found that the use of the screenshot had
defamed Franklin Prescription by implication, but that the pharmacy
had not suffered any harm as a result. The jury therefore made no
award of damages.
Franklin Prescriptions sought to have the case retried, arguing
that the judge had not properly instructed the jury on the question
of damages or on a concept known as “defamation per se” – which
basically means that merely making the statement is enough to
defame someone.
In such cases the plaintiff does not have to prove that he has
been harmed by the publication of the statement.
On Monday, the US Third Circuit Court of Appeals refused to
grant a retrial, on the grounds that lawyers acting for Franklin
Prescriptions had not officially objected to the judge’s jury
instructions on damages.
In addition, the Court refused to accept the “defamation per se”
issue as grounds for a retrial, as the judge had explained the
meaning of the concept to the jury, even if she had not used the
recognised legal term.
