First Department says plaintiff's image in HIV public service advertisement is defamatory

Basic defamation law holds that it's "defamation per se" if someone says you have a "loathesome disease." If it's defamation per se, damages are presumed and the plaintiff does not have to put on evidence of actual damages. The question here is whether New York State committed defamation per se when it used plaintiff's photo without her permission in an HIV/anti-discrimination public service announcement.

The case is Nolan v. State of New York, an Appellate Division First Department case issued on January 16. Plaintiff posed for a photograph two years ago in connection with an online magazine about music. Unknown to her, plaintiff's picture was sold to Getty Images, which compiles and sells stock photos. The state used her picture in the HIV/anti-discrimination ads that promoted the State Division of Human Rights, an anti-discrimination agency.

The loathesome disease rule asks whether the defendant's statement would lead people to think the plaintiff has a disease that is "contagious or attributed in any way to socially repugnant conduct." That rule is as old as the hills. The question is whether the HIV advertisement falls within this rule. "Critical to the determination is understanding the 'temper of the times' and the 'current of contemporary public opinion.'" There was a time that it was defamation per se to accuse someone of homosexuality, but the Third Department in 2012 "heavily criticized" that view, noting that "lingering prejudice towards homosexuals was insufficient to warrant the inclusion of a false imputation of homosexuality in the categories of material that give rise to a finding of defamation per se." While the State says that Third Department case means there is no defamation per so to imply someone has HIV, the First Department disagrees, stating that "HIV affects a broad spectrum of the population, including intravenous drug users," and sociological students show that HIV continues to be a significant stigma.

The First Department goes out of its way to emphasize that it does not "in any way regard HIV or any other disease to be 'loathesome,' and we disfavor that word," as "society aspired 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 an equal treatment of such persons." The court would "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."