Philadelphia-based 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 in detail "unscrupulous" and "cloak and dagger" web sites which take e-mail 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 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 also sued for defamation.
According to Law.com, The New York Times will argue in court that the article was not capable of inferring a defamatory meaning, and that Franklin Prescriptions has not shown any evidence of loss of profit or sales as a result of the article.
Jury selection begins today. The trial is expected to last a week.