© NY State Division of Human Rights
The model whose likeness appeared in the ad has won her defamation suit. © NY State Division of Human Rights

The model whose likeness appeared in the ad has won her defamation suit. © NY State Division of Human Rights

A model who was falsely identified as being infected with HIV in a 2013 public service advertisement is entitled to damages for defamation, according to a report in New York Law Journal.

State court judge Thomas Scuccimarra said in his ruling that falsely identifying the model in a stock photo as HIV positive was defamatory because “from the perspective of the average person, [it] clearly subjects her to public contempt, ridicule, aversion or disgrace.”

The model, Avril Nolan, sued for defamation after her likeness appeared without her permission in an ad by the New York State Division of Human Rights. The ad featured a photo licensed from Getty Images and headlines that said “I am positive (+)” and “I have rights.” The ad copy said, “People who are HIV positive are protected by the New York State human rights law” and provided information for contacting the state’s Division of Human Rights.

Nolan does not have HIV. But the photo, which was licensed from Getty Images, appeared with no disclaimer stating that Nolan was a non-infected model posing for a stock image.

Judge Scuccimarra said in his ruling that it was “self-evident” that the state’s use of the model’s likeness was defamatory, according to the New York Law Journal report. The standards for defamation, he explained in the ruling, are the “sensibilities of society as to what disease bears a pejorative stamp.”

The judge noted that the New York State Division of Human Rights ignored warnings provided by Getty with the image license not to use the photo in any way that might be considered pornographic, defamatory, unflattering or controversial to a reasonable viewer.

The judge rejected out of hand the state’s argument that it didn’t violate Nolan’s rights under the state’s Civil Rights laws because the ad was a public service announcement, rather than a commercial advertisement.

A trial date for damages has not been set.

Nolan also sued Getty for unauthorized use of the photo, claiming she had never authorized its use for commercial purposes. That claim was settled out of court earlier this year, according to New York Law Journal.

— David Walker

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