In April of 2013, the New York Department of Human Rights (DHR) created an ad campaign that featured the image of model, Avril Nolan, who had not consented to be portrayed in the ad. The ad featured a young woman with the tagline, “I am positive (+). I have rights.” The model has gone through several years of legal hurdles in an attempt to sue the DHR for $1.5 million.
According to the original 2013 story by the New York Post, the image in question was originally taken by photographer Jena Cumbo. The photographer later sold the image to Getty Images without “no written release or authorization” from the model. Afterwards, Getty Images sold the image to the DHR. Getty Images has already settled out of court with the model.
Earlier in January, a Manhattan appeals court ruled that the model had every right to sue the DHR on the grounds of emotional distress. “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,” court documents say.
The original DHR campaign was intended to help fight stigmatization of the HIV virus. In previous appeals, it had been determined that HIV was no longer stigmatized at a level that would allow Nolan to sue. In the most recent judgement however, Judge Angela Mazzarelli wrote, “The very fact that DHR highlighted the need for people with AIDS to not feel stigmatized is recognition that they do.”
HIV is a lifelong infection, however many people long and healthy lives after diagnosis. Treatments exist to help manage symptoms and prevent HIV from developing into AIDS provided the infection is caught early enough. HIV testing can often be the best way to detect the virus in its earliest stages.
There is no indication that the model in the ad is currently living with HIV. However, the use of her image could suggest otherwise. This brings into question an even larger issue of consent and the protection of patient information. While this lawsuit is a matter of likeness, it also brings to mind recent instances of the private health information of HIV patients being exposed publicly. Last year, AETNA sent out mail to several of their HIV positive patients exposing their status clearly to anyone who could see the envelope. AETNA has since been fined heavily for the error. This incident, along with incidents such as the AETNA mishap, have many in the health field looking at how we protect patient health information.
Ironically, the originally ad was meant to remind people living with HIV that they do have rights. One of those rights is to keep your status private. If you are concerned that you may have been exposed to HIV there are confidential, affordable and quick HIV testing options available to you. Always make sure to protect yourself and your health information.