158 A.D.3d 186
N.Y. App. Div.2018Background
- Claimant Avril Nolan's photo (licensed by DHR from Getty) was used without her consent in a New York State Division of Human Rights (DHR) public-service ad reading "I AM POSITIVE(+) / I HAVE RIGHTS," part of an HIV antidiscrimination campaign.
- Nolan had not signed a release; the Getty license purported a release and forbade defamatory or controversial uses absent a disclaimer (none appeared).
- The ad ran in several newspapers and websites; after Nolan complained, DHR pulled the ad the next day and ceased using the photo. Nolan settled separately with Getty.
- Nolan sued the State in the Court of Claims for defamation, defamation per se (claiming the ad imputed HIV), and violations of Civil Rights Law §§ 50–51 (unauthorized use of likeness). She sought $1.5M for reputational harm and emotional distress.
- The Court of Claims granted Nolan summary judgment on defamation per se and the Civil Rights Law claims; the State appealed. The Appellate Division affirmed liability on defamation per se but reversed on the Civil Rights Law claims and dismissed the ordinary defamation claim for lack of special damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a plaintiff asserting defamation per se must prove reputational injury (actual damage) beyond emotional distress | Nolan: under Gertz and subsequent NY authority, emotional distress or humiliation suffices; no need to show loss of reputation or special damages for per se claims | State: New York requires proof of actual reputational injury (not mere emotional distress) absent actual malice | Held: Emotional distress/personal humiliation qualifies as "actual injury" under Gertz and New York precedent (Hogan); reputational loss is not the sole route to recovery. |
| Whether imputation of HIV constitutes a "loathsome disease" for defamation per se | Nolan: HIV remains stigmatized and can lead to ostracism; thus an imputation is defamation per se | State: Contemporary attitudes and legal protections have reduced stigma; HIV should not be treated as "loathsome" per se | Held: HIV may still be actionable as a "loathsome disease" given ongoing stigma; the ad’s implication that Nolan was HIV-positive fit the per se category. |
| Whether Civil Rights Law §§ 50–51 (use of likeness for advertising/trade) apply to a state agency public-service ad | Nolan: DHR paid for/ran the ad to promote its services; statutes protect against nonconsensual use regardless of public purpose | State: DHR’s publication was a sovereign, noncommercial exercise of state police power and statutory duties (so §§ 50–51 do not apply) | Held: Sections 50–51 do not apply to the State acting in its sovereign capacity here; summary judgment for Nolan on those claims reversed and dismissed. |
| Whether ordinary defamation claim survives absent special (pecuniary) damages | Nolan: alleged impairment of reputation and emotional distress | State: Nolan lacks special damages (economic loss), so ordinary defamation fails | Held: Ordinary defamation claim dismissed for failure to plead/establish special damages; only defamation per se survives without proof of special damages. |
Key Cases Cited
- Gertz v. Robert Welch, 418 U.S. 323 (States may define "actual injury" but cannot allow liability without fault)
- New York Times Co. v. Sullivan, 376 U.S. 254 (actual malice standard for public officials)
- Dun & Bradstreet, Inc. v. Greenmoss Bldrs., Inc., 472 U.S. 749 (states may permit presumed damages in non-public-issue cases)
- Time, Inc. v. Firestone, 424 U.S. 448 (states can allow recovery for humiliation and mental anguish apart from reputational injury)
- Golub v. Enquirer/Star Group, 89 N.Y.2d 1074 (definition of "loathsome disease" as contagious or tied to socially repugnant conduct)
- Hogan v. Herald Co., 58 N.Y.2d 630 (New York recognizes mental anguish or humiliation as compensable actual injury)
- Mencher v. Chesley, 297 N.Y. 94 (defamatory matter exposes person to hatred, contempt, or aversion)
- Liberman v. Gelstein, 80 N.Y.2d 429 (lists defamation per se categories)
- Yonaty v. Mincolla, 97 A.D.3d 141 (discussion on whether imputations of homosexuality remain per se defamatory)