Nolan v. State of New York, 2018 N.Y. Slip Op. 00269 (N.Y. App. Div. January 16, 2018)

In Nolan v. State of New York, the Supreme Court of New York, Appellate Division, recognized that HIV stigma remains a significant social burden, holding that a model whose photograph was used in an HIV-related ad campaign by the New York State Department of Human Rights could recover money damages for defamation per se. The ad in which the photo was used read “I AM POSITIVE (+)” and “I HAVE RIGHTS,” with smaller print stating “People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights? Contact the NYS Division of Human Rights.” The photo used was a stock image for which the model had neither signed a release nor given the photographer permission to sell.  The photo’s license agreement expressly prohibited defamatory use or use “that would be unflattering or controversial to a reasonable person,” unless accompanied by a disclaimer that the person depicted was a model and that the photo was only for “illustrative purposes.” Under defamation per se, the plaintiff did not have to show loss of economic value.

The model argued, in part, that HIV qualifies under the “loathsome disease” category of terrible things said about another person that automatically (or "per se") qualify the claim for recovery. The court found that HIV qualifies under this category not because the disease is objectively shameful, but because a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society. The appeals court dismissed the model's general defamation claim (which requires proof of some kind of real harm to the person) and her claim under New York's Civil Rights Law (which the court held does not apply to non-commercial activity, and therefore wouldn't apply to the DHR's use of her image in an add to promote understanding of the law against discrimination's protections for PLHIV). 

In affirming the plantiff’s defamation per se claim, the appeals court stated: “This is not to imply that we in any way regard HIV or any other disease to be ‘loathsome,’ and we disfavor the use of that word. Society aspires to embrace people with various medical conditions, as reflected in the Americans with Disabilities Act and the myriad state and local statutes and ordinances requiring accommodations for and equal treatment of such persons. Accordingly, we prefer a formulation that makes clear that an imputation of a particular disease is actionable as defamation per se not because the disease is objectively shameful, but because a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society. Such a reworking of the category reflects the reality that those who suffer from the condition are the unfortunate targets of outmoded attitudes and discrimination.” 

Whle primarily a victory for the model, the 2018 decision is an unfortunate commentary on the widespread public ignorance about HIV that persists more than 35 years into the epidemic.