Model in HIV-Positive Ad Suing for Defamation
The ad used 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. The photographer sold the photo to Getty Images without her consent. Getty Images sells stock images and licensed the photo to the Division of Human Rights.
In addition to suing the state, Nolan is also suing Getty over its licensing of the photo because they incorrectly told the state that the model had signed a release giving permission to use the photo when she hadn't even given the photographer permission to sell the photo to Getty.
The New York Supreme Court Appellate Division’s First Department ruled that Nolan can pursue a $1.5 million claim for defamation against the state agency on the grounds of emotional distress. However, 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.Despite its ruling on HIV, the court said it disfavored the notion that any disease should be considered objectively shameful.
Comments from Allen:
When I first saw this picture, I assumed the statement in the ad was true: that the model shown did, in fact, have AIDS. It turns out, she did not.
Oops.
There are two basic defendants in this lawsuit: First, the State of New York for falsely telling everyone that reads the newspapers involved that Avril Nolan has AIDS. Second, Getty Images, which buys and sells photographs online. Getty had no permission to publish or resell this image. The photographer who took the picture, Jena Cumbo, was not sued.
Suing Cumbo would be the equivalent of an accident victim suing an uninsured driver: whatever verdict you receive would probably be meaningless, as the defendant has no means to pay.
Getty Images, however, has liability here and also has millions in assets and business insurance. The suit against Getty is for selling this photograph when it had no legal right to do so.
Oops.
There are two basic defendants in this lawsuit: First, the State of New York for falsely telling everyone that reads the newspapers involved that Avril Nolan has AIDS. Second, Getty Images, which buys and sells photographs online. Getty had no permission to publish or resell this image. The photographer who took the picture, Jena Cumbo, was not sued.
Suing Cumbo would be the equivalent of an accident victim suing an uninsured driver: whatever verdict you receive would probably be meaningless, as the defendant has no means to pay.
Getty Images, however, has liability here and also has millions in assets and business insurance. The suit against Getty is for selling this photograph when it had no legal right to do so.
Liability: This action is actually for libel, a subcategory of the tort of slander. Libel and slander are both types of defamation of character. Slander is generally a suit against someone for something they said. Libel is generally a suit against someone for something they wrote or published (such as a television or radio broadcast). Since written words stay around longer than spoken words, and can be viewed by more people, the law considers that they do more damage. For this reason, damages in libel cases are generally presumed, and plaintiffs need not show they suffered a specific pecuniary loss.
One type of statement that is absolutely defamatory is falsely accusing someone of suffering from a "loathsome disease," such as gonorrhea or syphilis. The court in this case agreed that accusing someone of being HIV-positive fits in this category. While the average person would consider this obvious, the defendant in Ms. Nolan's case actually argued that having AIDS no longer carries the stigma it used to. The court disagreed. Accusing someone of having AIDS is actionable. It casts that person in a very bad light.
I personally do not think asking for $1.5 million in this case is overstating the impact of this wrong. If you think otherwise, imagine yourself opening the daily edition of USA Today and seeing your photograph on the front page stating "[your name here] has an uncurable sexually-transmitted disease!" Consider that anywhere you go, whether people personally know you or not, they will recognize you from the photo as "that person who has the uncurable sexually-transmitted disease."
How ironic that the second statement in the ad is "I HAVE RIGHTS."
Yeah. One of those rights is to not have false and nasty things published about you.
Good luck, Avril. No one should have to suffer what you have gone through.
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Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen handles cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.
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Sources for more information:https://www.courthousenews.com/model-in-hiv-positive-ad-can-sue-for-defamation/
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