Model Awarded $125k in Damages Arising Out of Use of Image in HIV Rights Campaign

In Avril Nolan, Claimant, State of New York, Defendant., No. 123283, 61 Misc. 3d 1225(A), 2018 N.Y. Slip Op. 51789(U), 2018 WL 6497131 (N.Y.Ct.Cl., Nov. 08, 2018), the Court of Claims awarded the Claimant – a model whose image was used by the New York State Division of Human Rights in an advertising campaign to underscore that those suffering from HIV have rights – $125,000 in damages. The Claimant, who was not HIV+, sued for defamation.[1]In a prior decision, the court found that the claimant sustained her burden of showing that the false attribution that she was an individual diagnosed as HIV positive constituted defamation per se, in that she was falsely declared to have a “loathsome disease.”┬áNolan v State of New York, 2015 WL 7017223, 2015 NY Slip Op 32023 (U) (NY Ct Cl, Scuccimarra, J., Oct. 8, 2015).

After surveying the case law and damages awarded in other cases, the court explained its decision (notably, its decision not to award future damages):

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, and after applying the foregoing principles, and after considering the submissions by both counsel of cases involving individuals who have suffered somewhat analogous injuries, the Court finds that indeed, Ms. Nolan suffered emotional distress and humiliation during the immediate aftermath of the publication, and for some time thereafter, however there is no basis for an award of future damages.

Claimant did not seek counseling other than that offered by her family and a few close friends, never suffered any penalties at her job – indeed her bosses gave her time to visit her sister within a few months of the ad – and she appears to now be thriving in the field of vintage goods she indicated was her special interest.
Nonetheless, the Court credits Ms. Nolan’s assessment of a culture of competition at her job at Bollare, and in the public relations field generally, that left her particularly vulnerable as a young woman to the extreme anxiety and distress she suffered upon publication of the defamatory material. The Court also credits the increased anxiety she experienced when imagining how many people could potentially see the ad and make judgments about her that she feared. By all accounts, Ms. Nolan was sensitive, but had learned to hide her feelings somewhat in her two years in the competitive world of New York fashion public relations. This event credibly triggered a setback for her in her confidence and outward demeanor – Ms. Tate certainly noted that claimant’s job performance suffered for a period – but she appears to have come out of the experience. She did not lose friends or beaux, and ultimately moved on from her job and succeeded in a new venture.

Based on the humiliation, mental suffering, anxiety and loss of confidence suffered by this young woman at the beginning of her career, and at the beginning of her growing independence, the vast extent to which the defamatory material was circulated – albeit for the laudatory purpose of getting public service information out to as many people as possible – and all the circumstances herein, the Court hereby finds reasonable compensation to claimant is in the amount of $125,000.000, with appropriate interest from the date of the determination of liability on June 18, 2015.

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1. In a prior decision, the court found that the claimant sustained her burden of showing that the false attribution that she was an individual diagnosed as HIV positive constituted defamation per se, in that she was falsely declared to have a “loathsome disease.”┬áNolan v State of New York, 2015 WL 7017223, 2015 NY Slip Op 32023 (U) (NY Ct Cl, Scuccimarra, J., Oct. 8, 2015).