The jury reasoned that Philadelphia-based Franklin Prescriptions had not suffered any harm as a result of the defamation by implication, and no damages were awarded.
Franklin Prescriptions specialises in the market for infertility drugs. However, it does not sell on-line and its web site does not even include an e-mail 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 "unscrupulous" and "cloak and dagger" web sites that take e-mail orders for controlled infertility drugs, in particular without requiring a doctor's prescription. It also talked of "unscrupulous on-line 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 nor did the article identify Franklin as a legitimate practice rather than an unlawful one.
The company, which has been building its reputation for over 30 years, complained about the implication of the image from its web site 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 on-line, and that a prescription was required for any purchase. But the pharmacy sued for defamation.
According to the Law.com report the jury found that there was a "defamatory implication" in the article that would be understood by readers and would be "applied" to the pharmacy. The jury also found that the implication was "substantially false" and that The New York Times acted intentionally, recklessly or negligently when it published the defamatory implication.
However, the jury then found that the pharmacy had not suffered any "actual harm that was substantially caused by the article" after lawyers for the newspaper pointed out that Franklin's accounts had shown a rise in sales of $100,000 a year, and that the month after publication of the article sales had risen by $10,000.