Cox Broadcasting Corp. v. Cohn

• Citation: 231 Ga. 60,200 S.E.2d 127
• Decision Date: 05 September 1973
• Docket Number: No. 27880,27880
• Parties: COX BROADCASTING CORPORATION et al. v. Martin COHN.
• Court: Supreme Court of Georgia

Page 127

200 S.E.2d 127

231 Ga. 60

COX BROADCASTING CORPORATION et al. v. Martin COHN.

No. 27880.

Supreme Court of Georgia.

Sept. 5, 1973.

Rehearing Denied Sept. 19, 1973.

King & Spalding, Kirk McAlpin, John A. Pickens, Joseph R. Bankoff, Atlanta, for appellants.

Zachary & Land, Stephen A. Land, Atlanta, for appellee.

Syllabus Opinion by the Court

GUNTER, Justice.

This appeal involves the alleged invasion of 'the right to be left alone.' The cause of action involved is also referred to as an invasion of the right of privacy, or the tort of public disclosure.

On August 18, 1971, the appellee's seventeen-year-old daughter was the victim of the crime of rape. Her death immediately followed. Six young men were subsequently indicted for murder and rape.

The rape and the death of the rape-victim were widely publicized immediately after the occurrence of these events. However, apparently because of a Georgia statute (Code Ann. § 26-9901) the identity of the female victim was not disclosed by any of the news media. That Georgia statute is as follows: 'It shall be unlawful for any news media or any other person to print and publish, broadcast, televise, or disseminate through any other medium of public dissemination or cause to be printed and published, broadcast, televised, or disseminated in any newspaper, magazine, periodical or other publication published in this State or through any radio or television broadcast originating in the State the name or identity of any female who may have been raped or upon whom an assault with intent to commit rape may have been made. Any person or corporation violating the provisions of this section shall, upon conviction, be punished as for a misdemeanor.'

Approximately eight months after the commission of the alleged crimes, the six young men were involved in court proceedings pursuant to the indictments returned against them. On the same day of the court proceedings, April 10, 1972, and on the following day, April 11, 1972, the Appellant broadcasting company and its agent-reporter originated a telecast from the courthouse which disclosed the identity of the deceased rape-victim.

That telecast in part contained the following: 'Six youths wemt on trial today for the murder-rape of a teenaged girl. The six Sandy Springs high school boys were charged with murder and rape in the death of seventeen year old Cynthia Cohn following a drinking party last August 18. The tragic death of the high school girl shocked the entire Sandy Springs community. Today the six boys had their day in court. There was no jury. The six boys through their lawyers, threw themselves on the mercy of the court . . . and the presiding judge, Sam Phillips McKenzie. The prosecutor, assistant Attorney General John Nuckolls said the girl had apparently drank (sic) a considerable amount of vodka attending a private party. He said the girl was taken to a wooded area and raped. She passed out . . . and the liquids in her stomach were forced upward causing suffocation. The exact cause of death . . . that is whether the rape caused death he said would be difficult to prove. Judge McKenzie dropped the murder charge against all six . . . and proceeded with the charge of rape. The DA told the judge all six defendants wished to plead guilty . . . and not have a jury trial. The DA told the court the girl's family felt that a lenient five year sentence would serve justice and he recommended a five year sentence.'

The rest of the telecast, too lengthy to quote here, dealt with the names of the young men and the sentences that they received.

On May 8, 1972, the appellee brought an action for money damages against the broadcasting company and its reporter for having invaded his right to privacy by publishing the identity of his deceased daughter in connection with the circumstances related in the telecast.

There being no material dispute about the facts, both sides filed motions for summary judgment in the trial court. The appellants' motion for summary judgment was denied, and the appellee's motion for summary judgment was granted as to liability on the part of appellants, leaving for future determination in the trial court the amount of damages recoverable by the appellee. The trial court granted a certificate for immediate review, and we must now decide whether the trial court's partial summary judgment establishing liability on the part of the appellants was correct.

We must reverse the judgment below and remand the case for further proceedings consistent with this opinion.

I.

The trial court apparently granted summary judgment as to liability against the appellants on the theory that the Georgia statute which prohibits disclosure of the identity of a rape victim gives rise to a civil cause of action in favor of the victim and, in this case, the father of a deceased victim against the party making the disclosure; and there being no question about the disclosure in this case, the trial court determined liability to exist against the disclosing parties as a matter of law.

We disagree with the trial court on this score. This Georgia statute and its predecessor, formerly codified as Code § 26-2105, are penal in nature, and while these statutes establish the public policy of this state on this subject, neither of them created a civil cause of action for damages is favor of the victim or anyone else.

Since we rule that the statute did not create a civil cause of action, it is unnecessary for us to consider and rule on the various constitutional attacks made on the statute by the appellants.

II.

Aside from the statute, did the appellee's complaint filed in the trial court state a cause of action for invasion of the appellee's right to be left alone, or for the invasion of the appellee's right of privacy, or for the tort of public disclosure?

This tort, by whatever name it may be called, though relatively new in the entire history of the Common Law, has been recognized in this jurisdiction since 1905. This tort, though fathered by Messrs. Warren and Brandeis in a remarkable law review article published in 1890, was birthed by this court in Pavesich v. New England Life Insurance Company, 122 Ga. 190, 50 S.E. 68, 69 (1905). See Dean Wade's article, Defamation and the Right of Privacy, 15 Vanderbilt Law Review 1093 (October, 1962).

Dean Prosser, in his law review article entitled Privacy in 48 California L.Rev. 383 (August, 1960), said that Pavesich initially recognized the existence of a distinct right of privacy and thus became the leading case on the subject. He further said in that article: 'Along in the thirties, with the benediction of the Restatement of Torts, the tide set in strongly in favor of recognition, and the rejecting decisions began to be overruled. At the present time the right of privacy, in one form or another, is declared to exist by the overwhelming majority of the American courts.' P. 386.

Mr. Justice Peters of the California Supreme Court in a relatively recent case, Briscoe v. Reader's Digest Association, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34, (1971), said: 'A common law right to privacy, based on Warren and Brandeis' article, is now recognized in at least 36 states.'

We therefore adhere to our Pavesich beginnings and reiterate that this common law tort exists in this jurisdiction without the help of the statute that the trial judge in this case relied on.

III.

Does the father of a deceased minor child have a cause of action in tort by virtue of the public disclosure of the identity of his daughter as the victim of a sex crime and the unpleasant circumstances connected therewith, all of which occurred approximately eight months prior to the public disclosure of his daughter's involvement?

It is clear that the female victim's privacy was not invaded in this case. She had been dead some eight months prior to her identity and involvement being publicly disclosed.

The surviving father of the deceased daughter asserts that the tort was perpetrated directly upon him. He contends that the public disclosure of the identity and involvement of his daughter eight months after the fact invaded his right to privacy and intruded upon his right to be left alone, free from and unconnected with the sad and unpleasant event that had previously occurred.

A cause of action asserted by a close relative is sometimes called a 'relational' right to privacy. Dean Green delved into the subject of relational interests in a law review article published in 1934. 29 Illinois L.Rev. 460. The beginning paragraph of that article is as follows: 'The value of the relational interest in dealing with tort cases has not been generally recognized. It has been in large measure ignored or else classified as a property interest. It deserves a place alongside of personality and property. It fills an indispensable place in tort classification.' Later in the article at page 487, he said: 'It is not a situation of hurting the plaintiff's personality or harming the plaintiff's property. It is, sirictly speaking, a hurt to the relational interest of the plaintiff-his interest in a deceased relative-and on this basis recovery is not only warranted on behalf of a plaintiff, but is further warranted on the basis of condemning or penalizing the inconsiderate conduct of the defendant where such tender relations are involved.'

See also in this connection the Note by Robert P. Kennedy entitled 'The Right to Privacy in the Name, Reputation and Personality of a Deceased Relative' in 40 Notre Dame Lawyer 324 (April, 1965).

This jurisdiction is not without precedent in the 'relational' area of the law. In Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194 (1930), the parents of a deceased infant with an unusual birth defect sued a hospital, a photographer, and a newspaper for invasion of their privacy by publishing, or aiding the disclosure and publication of, a photograph depicting their deformed infant. The opinion by...