Though Eli Lilly did obtain an injunction
against individuals forcing them to return documents belonging to
it and to refrain from disseminating them further, it failed to
stop other websites from linking to copies of the documents in a
case which is being seen as a vital test of free speech online.
The documents relate to claims that Eli Lilly
deliberately downplayed the side effects of its best selling drug
Zyprexa, which is meant to treat schizophrenia and bipolar
disorder. The side effects are said to include weight gain, high
blood sugar levels and diabetes.
The company faces a number of product
liability law suits in relation to the drug, and has already paid
out $1.2 billion in pre-court settlements in other cases. One of
the judges in one of the cases, Judge Jack Weinstein, had ordered
not only individuals but websites to refrain from passing the
documents on to other people.
Weinstein has now reversed that decision in
relation to the websites, one of which was a wiki, which is a
collaborative online information source. It had published a link to
the documents, and the possibility of an order for the link's
removal was seen as a threat to user-generated content and the wiki
publishing model as a whole.
"A difficult issue is presented by Lilly’s
request to enjoin certain websites from posting the confidential
documents," said Weinstein in his judgment. "Prohibiting five of
the internet’s millions of websites from posting the documents will
not substantially lower the risk of harm posed to Lilly. Websites
are primarily fora for speech. Limiting the fora available to
would-be disseminators by such an infinitesimal percentage would be
a fruitless exercise of the court’s equitable power."
"A more effective use of the court’s equitable
discretion is to impose restraints on the individuals who pose the
greatest risk of harm to Lilly – those who have not returned the
documents despite knowledge that they were illegally procured,"
said Weinstein. "Mindful of the role of the internet as a major
modern tool of free speech, in the exercise of discretion the court
refrains from permanently enjoining websites based on the
insubstantial evidence of risk of irreparable harm. Restrictions on
speech, even in the context of content-neutrality, should be
avoided if not essential to promoting an important government
interest. No website is enjoined from disseminating documents."
The judge said that the websites had published
or linked to the documents before being told not to on 4th January,
and none had broken that order.
"This ruling makes it clear that Eli Lilly
cannot invoke any court orders in its futile efforts to censor
these documents off the Internet," said EFF staff attorney Fred von
Lohmann. "We are disappointed, however, that the judge failed
to appreciate that its previous orders constituted prior restraints
in violation of the First Amendment."
