Model wrongly thought to be HIV-positive through use of stock photo was defamed, appeals court says

Tort Law

A model falsely identified as HIV-positive when her stock photo was used in an educational ad campaign met the standard for proving defamation per se, a New York appeals court has ruled.

The Appellate Division, First Department, ruled on behalf of Avril Nolan in a decision on Tuesday, report the New York Law Journal and Courthouse News Service. Nolan claimed the ad accused her of having a “loathsome disease.”

Nolan’s photo was used in a print ad campaign by the New York State Division of Human Rights. Next to her photo was copy reading “I am positive+” and “I have rights.” Smaller print said people who are HIV-positive are protected by state law.

Nolan had originally posed for the photo for an online article about New Yorkers’ music interests, and the photographer sold the photo to a stock photo agency without Nolan’s permission. The Division of Human Rights was wrongly told Nolan had signed a release for use of the photo. When alerted to Nolan’s objection, the division pulled the ads.

Nolan asserted the statement about HIV qualified as a “loathsome disease,” one of four categories of statements in New York that constitute defamation per se—defamation that is so harmful to reputation that economic damages need not be shown. The other categories are false statements about serious criminality, that are professionally damaging, or that claim unchastity.

Nolan’s $1.5 million suit alleged emotional distress, but not economic damages. A trial judgment granted summary judgment to Nolan on the defamation per se claim, and the appeals court affirmed.

Society has not progressed to the point where calling someone HIV-positive is not defamatory, the appeals court said. HIV continues to be a significant stigma, and “it can still be said that ostracism is a likely effect of a diagnosis of HIV,” according to the court.

The appeals court stressed it doesn’t actually consider HIV to be a loathsome disease.

“We prefer a formulation that makes clear that an imputation of a particular disease is actionable as defamation per se not because the disease is objectively shameful, but because 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,” the court said.

Nolan had also sued the photo agency in a separate suit, which has settled, according to the New York Law Journal.

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