Hobbsr: Model Can Seek $1.5M for HIV Ad Featuring Her Image

Those that ascribe to the "any PR is good PR" mantra might be tempted to tell a model that any use of her image would be a good use. But what about a use that implies she is HIV positive?

That happened to model Avril Nolan after New York's Division of Human Rights ran a full-color, quarter-page ad featuring her face, beside the words "I am positive (+)" and "I have rights," all without her permission. Nolan sued, claiming the ad was defamatory and that the DHR violated state civil rights laws. And a state appeals court agreed, with the defamation part at least.

Per Se Bad Publicity

The court's ruling is a bit dicey, politically speaking. Nolan is claiming that the unauthorized association of her image with HIV is a particular kind of defamation per se. Normally, in order to succeed in a defamation lawsuit, a plaintiff must prove that the false assertion caused some tangible damage to her reputation. But some false statements are considered so damaging that they are deemed defamatory on their face, and don't require the same proof of damages.

One category of defamation per se is an indication that a person has a "loathsome," contagious, or infectious disease. The state tried to argue that an association with HIV wasn't inherently damaging, highlighting recent cases where courts ruled that merely calling someone gay was not slanderous, and even pointing to celebrities like Charlie Sheen and Magic Johnson who remain popular despite publicly affirming their HIV-positive status. But the Supreme Court of New York's Appellate Division wasn't on board:

Further, claimant, in countering the State's anecdotal evidence regarding public figures with HIV, cites several sociological studies establishing that HIV continues to be a significant stigma. For example, she cites to academic studies from 2014 and 2015 that conclude that people fear getting tested for HIV because of the perceived social repercussions of a positive result. Since it can still be said that ostracism is a likely effect of a diagnosis of HIV, we hold that the defamatory material here falls under the traditional "loathsome disease" category and is defamatory per se.

So while the intent of the ad campaign might've been to reduce the stigma surrounding an HIV diagnosis, enough of that stigma still exists to make a false association regarding such a diagnosis defamatory.

Rejected Civil Rights Claims

Nolan also alleged the DHR's unapproved use of her photo violated state civil rights laws that prohibit the nonconsensual use of a person's image for commercial purposes. The appeals court was less sympathetic to this claim, finding "DHR was engaged in a decidedly noncommercial campaign designed to advance its mission of promoting civil
rights."

Still, Nolan may recover up to $1.5 million in damages for the emotional distress she says she suffered after publication of the ad.

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