September 16, 2020
One woman from New York is finally knocking the court’s door after learning that her photo was used in a HIV-related ad without her consent five years ago. She is seeking $1.5 million in damages from New York for defamation.
In 2011, model Avril Nolan posed for a magazine article focused on New York’s music interest. Later, the photographer, Jena Cumbo sold her photos on Getty, a stock image platform, and New York State Division of Human Rights purchased that picture 2 years later to use in an HIV ad campaign.
In April 2013, a friend of Nolan told her that she has seen her photo on a quarter-page color ad in a newspaper. After investigating, she found out that her photo has been used in an ad which appeared on the April 3, 2013 edition of free daily newspaper AM New York and other local papers.
According to court records, the ad printed 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.”
Upon learning of the publication, Nolan became instantly upset and apprehensive that her relatives, potential romantic partners, clients as well as bosses and supervisors might have seen the advertisement.
Nolan said, “There’s a lot of negativity around it, and there’s a lot of associations that people jump to incorrectly about your lifestyle. People think… you’re easy, or you’re promiscuous…. It also brings up drug use and just all of these things that I did not want to be associated with and was very embarrassed to be associated with.”
Along with the state, she also sued Getty for the licensing over the photo. When asked by the state before using the photograph, Getty told them that the model has signed a release for her photograph, but in reality, Nolan didn’t even give her permission to the photographer himself to sell her photo.
The state argued that in today’s age, our society has progressed to a point where HIV is not considered a shameful condition that calling someone HIV in public is not defamation.
But the fact remains that the stigma of HIV is still spreading in the society. A study states that over 50% of HIV+ people feel discriminated on daily basis over their status. Even in the LGBTQ community, according to one poll which is done by LGBTQ Nation, around 47% of gay men feel uncomfortable kissing an HIV+ person.
Although Nolan sued New York State Division of Human Rights for $1 million, she has been awarded by the court only 12.5% of the sum she asked for, which is accounting to $125,000 over the “emotional trauma and embarrassment“ she experienced.