Model in HIV-Positive Ad Can Sue for Defamation

(CN) – A model whose image was used without her consent in an ad promoting the rights of people with HIV can seek $1.5 million in damages from New York for defamation, a state appeals court ruled Tuesday.

Brooklyn-based model Avril Nolan sued New York State over a full-color, quarter-page ad that the Division of Human Rights ran in the April 3, 2013, edition of the free daily newspaper AM NY and other local papers.

According to court records, the ad printed the words “I am positive (+)” and “I have rights” beside Nolan’s face, above a message in smaller print that stated, “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."

Nolan posed for the picture two years earlier for an article about New Yorkers’ music interests. Unbeknownst to her, the photographer sold the photo to Getty Images, which sells stock images and licensed the photo to the Division of Human Rights.

In addition to the state, she also sued Getty over its licensing of the photo. Getty incorrectly told the state that the model had signed a release giving permission to use the photo, when she had not even given the photographer permission to sell the photo to Getty, court records show.

The New York Supreme Court Appellate Division’s First Department ruled Tuesday that Nolan can pursue a $1.5 million claim for defamation against the state agency on the grounds of emotional distress.

The state argued that society has progressed to the point where having HIV is no longer a shameful condition such that publicly calling someone HIV-positive should be considered defamation.

“We disagree that the treatment of those with HIV has progressed to that degree,” Justice Angela Mazzarelli wrote for the appeals court.

Although celebrities such as Charlie Sheen and Magic Johnson have revealed their HIV status and still maintained social acceptance, “it can still be said that ostracism is a likely effect of a diagnosis of HIV,” the opinion states. “We hold that the defamatory material here falls under the traditional ‘loathsome disease’ category and is defamatory per se.”

Despite its ruling on HIV, the court said it disfavored the notion that any disease should be considered objectively shameful.

It suggested that the category of “loathsome disease” in defamation law should be reworked to reflect the fact that “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.”

“Indeed, we recognize that the very campaign in which claimant was unwittingly enmeshed was designed to correct such outmoded attitudes toward people infected with HIV,” Mazzarelli wrote.

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