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."