An Irish model living in New York has been told she can collect damages from a 2013 state advertising campaign that used her image to promote the rights of HIV-positive New Yorkers and falsely identified her as having HIV.
Avril Nolan, 27, an Irish model now based in Brooklyn, filed a lawsuit against the New York Division of Human Rights in April 2013 for using her image alongside the words “I am positive (+)” and “I have rights” in a quarter-page color advertisement in the April 3 edition of amNewYork, a free daily publication circulated to thousands of New York commuters.
The ad also appeared in Newsday, Metro, on websites run by Metro, The Journal News site LoHud.com and the Albany Times-Union site capitolconfidential.com but was removed when Nolan complained.
Nolan believed that the advertisement wrongly suggested she had HIV leaving her “feeling humiliated” and “instantly upset” when she discovered that “relatives, potential romantic partners and clients” could view the ad.
“She was mortified,” Nolan’s lawyer, Erin Lloyd said. “It has caused a lot of anxiety.”
"Feeling humiliated and embarrassed, she was forced to confess to her bosses that her image had been used in an advertisement for HIV services, implying that she was infected with HIV, in a newspaper often used by her own clients for advertising and that is distributed to tens of thousands of New Yorkers every day."
The State's Division of Human Rights, however, contested that HIV is not a “loathsome disease for defamation purposes.”
This week, Court of Claims Justice Thomas Scuccimarra backed Nolan’s claims that the context in which the photo was used falsely suggested that she was HIV positive, causing her to be defamed.
Scuccimarra wrote that those with HIV can be the subject of “public contempt, ridicule, aversion or disgrace” and that state employees did not take into consideration the effect it could have on Nolan when putting together their campaign.
“That the state was negligent is self-evident,” Scuccimarra said
“Not just sexually transmitted diseases fall under the loathsome disease category but any disease that arouses some intense disgust in society, in part because it is viewed as incurable or chronic.”
"It would be hoped that an indication that someone is suffering from AIDS or that she has been diagnosed as HIV positive would not be viewed as indicative of some failure of moral fiber, or of some communicable danger, however our society is not so advanced," he added.
The judge also commented on the license agreement the Division of Human Rights had signed when acquiring the image in which the were warned “not to use the image for pornographic or defamatory purposes or in a way that would be ‘unflattering or controversial’ to a reasonable viewer.”
The image in question was taken in 2011 by a photographer friend of Nolan’s, Jean Combo, who later sold the image to stock image site Getty Images without Nolan’s permission. Nolan reached a confidential settlement with Getty Images in January 2015.
The judge will hold a hearing in April 2016 to establish the damages to be paid by the state. Nolan’s lawsuit originally sued for $450,000.