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Model Can Seek $1.5M for HIV Ad Featuring Her Image

Those that ascribe to the "any PR is good PR" mantra might be tempted to tell a model that any use of her image would be a good use. But what about a use that implies she is HIV positive? That happened to model Avril Nolan after New York's Division of Human Rights ran a full-color, quarter-page ad featuring her face, beside the words "I am positive (+)" and "I have rights," all without her permission. Nolan sued, claiming the ad was defamatory and that the DHR violated state civil rights laws. And a state appeals court agreed, with the defamation part at least. Per Se Bad Publicity The court's ruling is a bit dicey, politically speaking. Nolan is claiming that the unauthorized association of her image with HIV is a particular kind of defamation per se. Normally, in order to succeed in a defamation lawsuit, a plaintiff must prove that the false assertion caused some tangible damage to her reputation. But some false statements are considered so damaging that they are deemed defamatory on their face, and don't require the same proof of damages. One category of defamation per se is an indication that a person has a "loathsome," contagious, or infectious disease. The state tried to argue that an association with HIV wasn't inherently damaging, highlighting recent cases where courts ruled that merely calling someone gay was not slanderous, and even pointing to celebrities like Charlie Sheen and Magic Johnson who remain popular despite publicly affirming their HIV-positive status. But the Supreme Court of New York's Appellate Division wasn't on board: Further, claimant, in countering the State's anecdotal evidence regarding public figures with HIV, cites several sociological studies establishing that HIV continues to be a significant stigma. For example, she cites to academic studies from 2014 and 2015 that conclude that people fear getting tested for HIV because of the perceived social repercussions of a positive result. Since it can still be said that ostracism is a likely effect of a diagnosis of HIV, we hold that the defamatory material here falls under the traditional "loathsome disease" category and is defamatory per se. So while the intent of the ad campaign might've been to reduce the stigma surrounding an HIV diagnosis, enough of that stigma still exists to make a false association regarding such a diagnosis defamatory. Rejected Civil Rights Claims Nolan also alleged the DHR's unapproved use of her photo violated state civil rights laws that prohibit the nonconsensual use of a person's image for commercial purposes. The appeals court was less sympathetic to this claim, finding "DHR was engaged in a decidedly noncommercial campaign designed to advance its mission of promoting civil rights." Still, Nolan may recover up to $1.5 million in damages for the emotional distress she says she suffered after publication of the ad. Related Resources: Find Defamation Lawyers Near You (FindLaw's Injured) What's the Difference Between Libel and Slander? (FindLaw's Injured) Invasion of Privacy: False Light (FindLaw's Learn About the Law) What Is Invasion of Privacy? (FindLaw's Injured)
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Can the Feds Force You to Unlock Your Phone With Your Fingerprint?

You might've thought enabling Touch ID on your iPhone made it more secure. After all, it's harder to fake your fingerprint than to guess a passcode. But when it comes to the law enforcement searches, your smartphone might've gotten a lot more vulnerable. According to Forbes, federal law enforcement officers recently served a warrant on a California home which gave them "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant."Essentially, cops could force everyone in the residence to open their phones. Is this really legal? Fourth Amendment Concerns The Fourth Amendment protects people "against unreasonable searches and seizures," and generally requires law enforcement officers to get a warrant before searching someone's home or personal effects. In order for the Fourth Amendment to apply, a person must show that he or she has a "reasonable expectation of privacy" in the place being searched or thing being seized. But courts have consistently found that a person has no expectation of privacy in physical characteristics like fingerprints, and that a police may therefore require that a person give fingerprint samples. So requesting a fingerprint to open a phone likely doesn't violate the Fourth Amendment's reasonableness requirement. In terms of search warrants, they must be based on probable cause, and "particularly [describe] the place to be searched, and the persons or things to be seized." This has generally been interpreted to mean the warrant must be narrow in scope, but, as Electronic Frontier Foundation staff Andrew Crocker told the Washington Post, a warrant that "extended to include any phone that happens to be on the property, and all of the private data that that entails" could stretch those limits. Fifth Amendment Concerns The Fifth Amendment, on the other hand, protects people against self-incrimination and could apply to warrants for biometrics in certain circumstances. In general, courts have not found fingerprints, by themselves, to be self-incrimination because they aren't "testimonial" in the sense that they don't amount to a statement about something. But does that necessarily mean that officers can force you to use your fingerprint to unlock your phone? Law professor and blogger Orin Kerr looked at three such scenarios and opined that, as long as the officers already know that the phone is yours, the answer is probably yes. At that point your fingerprint would not be telling officers anything they didn't already know, or, as Kerr put it, "No testimonial statement from the person is implied by the act of placing his finger on the reader." But when -- as in the case above that involves a search of a residence with multiple phones and multiple people -- cops don't know which device belongs to whom, being forced to unlock a phone could be testimonial: It amounts to testimony that says, "yes, this is my phone," or at least, "yes, this phone was set to recognize a part of my body as a means of access." It further says: "I am familiar enough with this phone to know that the fingerprint reader was enabled and which part of me was used by me to program the fingerprint reader." According to Forbes, the warrant in this case is "unprecedented," but we may see similar warrants as more people use their fingerprints to secure their smartphones. If you've been subject to a similar search, you should contact a criminal defense attorney as soon as possible. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Do You Have to Let Cops Search Your Cell Phone? (FindLaw Blotter) Cell-Phone Fingerprint Ruling: 5 Things You Should Know (FindLaw Blotter) Geo-Tracking: Should Phone Location Info Require a Warrant? (FindLaw Blotter)
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Top 5 Theme Park Injury Concerns

School is almost out; summer is almost in, and family vacations are right around the corner. For millions of us, that means a trip to Disney World, Sea World, or any of the other theme park worlds nationwide. While a trip to an amusement park is undoubtedly fun, they're not always the safest place on earth. So what happens if you're injured during your Wally World adventure? Here are some common questions and concerns regarding theme park injuries. 1. 5 Personal Injury Lessons From Disney Lawsuits The Happiest Place on Earth is also one of the most litigious places on earth. Any time your open for as long and Disneyland and Disney World and have as many customers, you're bound to see a lawsuit or a few hundred of them. And here's what you can learn from those injury lawsuits filed against Disney. 2. Who's Liable for Waterpark Injuries? There may only be two Disney locations, but there are over 1,000 water parks from coast-to-coast that make cooling off from global warming a fun family affair. Generally, theme parks are responsible for the safety of their rides and attractions, but there are some extra concerns when it comes to patron safety in water parks. 3. Will SeaWorld Death End Killer Whale Shows? While the latest controversy about SeaWorld's killer whale shows came from concern of the wellbeing of the whales, there have also been injuries and deaths to trainers too. Just like parks have a responsibility for customer safety, they are responsible for their employees' safety as well. And workers' compensation claims against theme parks are commonplace. 4. Theme-Park Suits Rarely See Courtrooms Most theme parks want to avoid the negative publicity associated with a personal injury lawsuit, and will do their best to settle the case before it ever goes to trial. Additionally, many parks have customers sign a liability waiver in an attempt to absolve them from legal responsibility. While these waivers can deter some lawsuits, they are not always enforceable. 5. 5 Ways to Sue Over Theme Park Injuries Despite a theme park's best intentions to avoid customer injuries, they do happen. And despite a theme park's best efforts to avoid litigation, there are ways to sue a theme park if you are injured at one. The best way to know whether you have a case against a theme park is to ask an experienced personal injury attorney. Many offer free consultations, so contact one in your area today. Related Resources: Injured in an accident? Get your claim reviewed by an attorney for free. (Consumer Injury) Six Flags Death: Woman Falls From Coaster (FindLaw's Injured) NY Six Flags Sued Over Norovirus Outbreak (FindLaw's Injured) 'Brain-Eating' Amoeba Scare Closes Water Park (FindLaw's Injured)
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Top 9 Search and Seizure Questions

Now that the FBI has been caught bugging two California courthouses, many people are wondering about the limits of police surveillance. Recording conversations falls under the Fourth Amendment, which prohibits "unreasonable searches and seizures." So what's considered unreasonable? It's been a long time since the Constitution was written, and society and technology have changed quite a bit since then. Here are some of the limits of police search and seizure today: 1. Valid Search Warrant? 3 Things to Look For If police have a warrant, the search or seizure will almost always be reasonable. But how do you know if the warrant is legit? 2. When Are Warrantless Searches OK? While police need a warrant to search, seize, or conduct surveillance in most instances, there are quite a few exceptions to the warrant requirement. 3. Can Police Read or Search Through Your Mail? The privacy of written communication was one of the leading interests behind the Fourth Amendment. But it only protects the contents of the letter, and only until you throw it away. 4. Legal for Police to Read My Text Messages? State law on electronic searches can vary, and many allow searches of cell phones if you've been arrested, but the Supreme Court has ruled that police will need a warrant to do so. 5. When Can Police Search Your Home? Police almost always need a warrant to search your home, but can come in without one if you give them permission, if they see something in plain sight, if you've been arrested at home, or there's an emergency. 6. Can My Home Be Searched If I'm on Parole or Probation? Some states require that parolees and probationers sign an agreement giving officers permission to search their homes for contraband. 7. Is it Legal to Search Based on The Smell of Marijuana? Is every officer a K-9? It may depend on whether police smell marijuana in your house or in your car. 8. Can Police Follow You Without a Warrant? What if cops are really searching you, but just keeping an eye on you? What kind of surveillance requires a warrant? 9. When Can Police Conduct a Strip Search? Strip searches and cavity searches are extremely invasive and can be humiliating and embarrassing as well. But they are allowed in some cases. In most cases, if police perform an illegal search or seizure, that evidence can't be used against you. To find out if a particular search was legal, you should ask an experienced criminal defense attorney about your case. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) What are my Rights During a Traffic Stop? (FindLaw Blotter) Can Cops Pose as Cable Repairmen and Search My Home? (FindLaw Blotter) Wrongful Arrest? ...
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Holiday Injuries and Decorating Disasters

That beautiful star for the top of the tree has ruined Christmas! Well, to be truthful it was more the rickety ladder you used to get to the top of the tree, the one that caused you to topple over and fall. If you find yourself in the hospital emergency room from a holiday decorating injury, you will not be alone. The United States Consumer Product Safety Commission (CPSC) is charged with protecting the public from unreasonable risks of injury or death associated with consumer products, and it has some pretty surprising data on holiday decorating injuries. Last Year’s Data According to the CPSC, during November and December 2014, there were 12 estimated fatalities and 145,000 injuries treated in hospital emergency rooms all related to holiday decorating. That amounts to an average of 240 injuries per day during the season of cheer and giving. The consumer protection organization warns that falls, lacerations, back strains, and ingestion of foreign objects were the top reasons for injuries. Here is how the CPSC suggests you can avoid decorating disasters. Avoid Decorating Disasters Use caution on ladders. The CPSC says that 36 percent of holiday decorating injuries are the result of falls. Half of those are falls from ladders. Check live Christmas trees for freshness. Keep them away from heat sources. Make sure to keep trees well watered. Purchase fire resistant artificial trees. Not as fun, but safe. Place lighted candles away from trees. Also be extremely wary of candles around wreaths, curtains and furniture. Examine new and old Christmas light sets for damage. Discard sets with cracked or broken sockets, frayed or exposed wires, and loose connections. Buy lights that show markings of a safety testing laboratory. Fires sparked by holiday lights caused ten deaths last year. Keep small decorations away from children. Tiny decorations make huge choking hazards. Be extremely conscious when hanging ornaments on the tree or placing decorations around the house. Also avoid trimmings that look like food or candy. Be mindful of sharp, weighted, or breakable decorations. Lacerations were the top-reported decorating-related injuries last year. Consult With Counsel If you do end up injured this holiday season, first see a doctor, and then, speak to a lawyer. Sometimes injuries occur due to product defects or because a product is inherently dangerous. Consulting with counsel costs is often free for the first meeting and you may find you have a claim. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) First Steps in a Personal Injury Claim (FindLaw) Meeting With an Attorney (FindLaw)
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