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Model who unwittingly became the face of HIV can sue for defamation of character
A Brooklyn model who unwittingly became the face of HIV when a state agency used her stock photo in one of its ads can sue for defamation, a Manhattan appeals court says.
Like it or not, HIV is still considered “loathsome” by a “significant segment of society” — so model Avril Nolan, who does not have the virus, has every right to pursue her $1.5 million claim against the Division of Human Rights, the panel said in a unanimous ruling issued Tuesday.
The agency had used Nolan’s face in ads along with the words, “I am positive ()’’ and “I have rights,’’ in 2013 to promote the rights of HIV-positive New Yorkers.
The Court of Claims had previously ruled in 2015 that the virus still had enough stigma to allow Nolan’s suit to proceed. The agency appealed, arguing that “HIV is no longer a shameful condition” but lost again with Tuesday’s ruling.
“The very fact that DHR highlighted the need for people with AIDS to not feel stigmatized is recognition that they do,” Appellate Justice Angela Mazzarelli wrote in the new decision.
“This is not to imply that we in any way regard HIV or any other disease to be ‘loathsome,’ ” Mazzarelli added in her opinion on behalf of the panel.
But “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.”
Nolan– who learned about the ads from her Pilates instructor– can now sue for emotional distress because the panel determined that people with HIV are “unfortunate targets of outmoded attitudes and discrimination.”
Nolan’s suit says she “became instantly upset” that “relatives, potential romantic partners and clients” would see the quarter-page, color ads featuring her in an image with the words “I am positive ().”
She had posed for a photographer friend who was shooting for an online music publication. The photographer later sold the shot to Getty Images, which settled with Nolan in 2015.
A lower court found that the DHR staffer responsible for the ad ignored the license agreement, which stated that Nolan’s image couldn’t be used in an “unflattering or controversial” campaign.
A spokeswoman with state Attorney General Eric Schneiderman, who is defending the claim on behalf of the agency, did not immediately return messages seeking comment.
Nolan told The Post, “I don’t want to talk about it.”