‘There but for the grace..’ may be the comment of many time and budget-strapped marketers on this sad story of mistaken identity in a drug promotion brochure.
Topic: People in advertising
Who: Merck and Co and an HIV patient
When: September 2001
Where: New York
A Merck brochure carried a picture of a patient alongside a story about an HIV positive, unmarried mother who suffered from herpes and had conceived a child knowing she carried the virus. An unfortunate case. Even more unfortunately, the story was fictionalised and did not apply to the pictured person at all. She had been infected with the HIV virus, but there the truth departed sharply from the fiction, as the real person pictured was married with two children and had unknowingly been infected by her husband. A lawsuit ensued and with the New York Supreme Court having found the pharmaceutical company liable for defamation as well as civil rights violation, the case is now proceeding to a damages-only trial.
Why this matters:
A recent UK case reported on marketinglaw established that an advertiser promoting telephone sex services cannot be held liable for defamation simply because a professional model shown happens to bear an uncanny and totally coincidental resemblance to another person.
This is an altogether different case, however, and although New York law was applied, it is unlikely the outcome on the defamation claim would have been very different here. The case underlines the need to take extreme care when using photographs of real people in advertising.