A US appeals court has ruled that there can be no new trial in a case brought against the New York Times over a pharmacy screenshot used on the media giant’s website to illustrate an article about the illegal sale of medicinal drugs over the internet.
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.
