Multimedia WMAZ, Inc. v. Kubach

• Decision Date: 18 March 1994
• Docket Number: No. A93A1451,A93A1451
• Citation: 212 Ga.App. 707,443 S.E.2d 491
• Parties: MULTIMEDIA WMAZ, INC. v. KUBACH.
• Court: Georgia Court of Appeals

Page 491

443 S.E.2d 491

212 Ga.App. 707

MULTIMEDIA WMAZ, INC. v. KUBACH.

No. A93A1451.

Court of Appeals of Georgia.

March 18, 1994.

Reconsideration Denied April 1, 1994.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Howard J. Strickland, Jr., Macon, for appellant.

Karen K. Daniels, Macon, Cooper & Rumsey, Lawrence A. Cooper, Atlanta, for appellee.

POPE, Chief Judge.

In this invasion of privacy case, defendant appeals from a jury verdict awarding plaintiff $500,000 in general damages and $100 in punitive damages.

Plaintiff has Acquired Immune Deficiency Syndrome (AIDS). In December 1989, defendant television station produced a live call-in show on the topic of AIDS and drug use. Through his physician, Dr. Harold P. Katner, plaintiff agreed to participate. Defendant told Dr. Katner, and Dr. Katner told plaintiff, that his face would not be recognizable to the television audience; and plaintiff would not have participated in the show without this assurance that he would not be recognizable. Defendant planned to electronically distort plaintiff's image through a process called digitization. Defendant had previously aired another program on AIDS in which some of Dr. Katner's female patients appeared with their faces digitized. For the first seven seconds plaintiff was shown, however, the digitization was inadequate and plaintiff was recognizable. Defendant's employee testified that he pre-set the level of digitization, and that he thought it was sufficient. He did not use plaintiff and the other participant to pre-set the digitization even though they were there and available, however; nor did he allow them to see the level of digitization and give them the opportunity to ask that it be increased as defendant had with the female patients on the earlier AIDS talk show. Defendant's employee also testified that he did not like to put the level of digitization too high because if he did so, the viewing audience would lose interest.

When plaintiff was first diagnosed with AIDS in late 1987, his physical condition was poor and he was depressed. After he began taking the drug AZT in the spring of 1988, however, he enjoyed a remarkable turnaround in both his physical and emotional condition. Plaintiff was upbeat and wanted to live as long as he could. He went out with friends often, and frequently would be greeted by people who knew him from when he owned and operated an extremely popular restaurant in Macon (1975-1985). In September 1989, plaintiff began working on a part-time basis at Peter Pan Cleaners. He worked 20 to 25 hours a week, waiting on customers and doing whatever needed to be done. His boss testified that he was outgoing and friendly. He was not actually paid a salary, but received the equivalent of $3.35 per hour in food, dry cleaning and use of a vehicle, as well as some cash. After defendant's broadcast, plaintiff became withdrawn, extremely depressed and almost suicidal. He refused to leave his home for fear of being recognized and pointed out as an AIDS patient, and this situation was exacerbated when his sister convinced him to go out to a fast food place and he was in fact recognized and harassed by several young people. Plaintiff was unable to continue working at the cleaners because he no longer felt he could deal with the public at the front counter, though he did work in the back for a few months during the cleaners' busy season--the only time his boss could afford to keep him on without waiting on customers. Dr. Katner testified that when a person has AIDS, stress and emotional upset often have a detrimental effect on their physical condition, and that in plaintiff's case it manifested itself in shingles, an extremely painful disease associated with stress. His physical condition, particularly his immune system condition, dropped dramatically after defendant's broadcast. This very bad situation lasted for about a year. Since then plaintiff has improved, but his condition is still worse than it was before the broadcast. Plaintiff sued defendant for invading his privacy by publicly disclosing private facts about him, and defendant appeals from the jury's verdict for plaintiff.

1. Defendant contends plaintiff "waived" his right to bring this action for public disclosure of private facts by making the fact that he had AIDS "public" prior to defendant's broadcast. Among the elements necessary to establish a cause of action for public disclosure of embarrassing private facts is the requirement that "the facts disclosed to the public must be private, secluded or secret facts and not public ones." Cabaniss v. Hipsley, 114 Ga.App. 367, 372, 151 S.E.2d 496 (1966). Accordingly, the protection afforded an individual's right to privacy may be waived or withdrawn " 'to whatever degree and in whatever connection [his] life has ceased to be private.' " Id. at 374, 151 S.E.2d 496. In Cabaniss, for example, we held that where an exotic dancer allowed various dancing establishments to use a particular publicity photo of her, she could not maintain an action for public disclosure of private facts against another dancing establishment (and the magazine it advertised in) for using the same photo without her permission. And in Cummings v. Walsh Constr. Co., 561 F.Supp. 872 (S.D.Ga.1983), a federal district court applying Georgia law held that a woman could not sue her supervisor for public disclosure of private facts for telling co-workers about their affair when she herself had told other co-workers about their affair. As indicated by these cases, waiver in this context is a relative term: the scope of the waiver is related to and limited by the scope of the actions on which the waiver is based.

In this case, defendant points to evidence that prior to its broadcast, plaintiff: (a) appeared on a national television show, allowing his back to be viewed undigitized and his voice to be heard undisguised; and (b) acknowledged his disease to family members, friends, medical personnel and members of his AIDS support group. Plaintiff's face was adequately digitized in the earlier nationwide program, however, and the evidence did not show that his identity was revealed to the community by that broadcast. Moreover, we cannot agree that plaintiff made the fact of his disease public as a matter of law, thereby waiving his right to keep it from the entire television viewing public in Macon, by telling a relatively small number of people ¹ he thought had reason to know of his disease; for unlike the disclosures of the plaintiffs and defendants in Cabaniss and Cummings, plaintiff's disclosure of the fact of his disease to his family, friends and support group and defendant's disclosure of plaintiff's identity as an AIDS patient to the television viewing public in Macon were similar in neither degree nor context.

"[The right of privacy] may be waived for one purpose and still asserted for another; it may be waived in behalf of one class and retained as against another class." Pavesich v. New England Life Ins. Co., 122 Ga. 190, 199, 50 S.E. 68 (1905). Plaintiff disclosed the fact that he had AIDS to family, friends, medical personnel and members of his support group. He wanted these individuals to know of his illness because they cared about him and/or because they also had AIDS. Although there was testimony that plaintiff did not explicitly tell his friends and family not to tell anyone else, there was also testimony that they understood that plaintiff's condition was not something they would discuss indiscriminately. Defendant's disclosure went far beyond the scope of any prior disclosure by plaintiff, in terms of both audience and purpose. Moreover, defendant explicitly agreed to respect plaintiff's privacy in order to secure his participation in the show. Under these circumstances, the jury was authorized to find that the fact that plaintiff had AIDS was not public prior to defendant's broadcast, and the trial court did not err in denying defendant's motion for directed verdict on this ground.

2. Defendant also argues that it cannot be liable for its disclosure of plaintiff's identity as an AIDS patient because the disclosure occurred during a broadcast on a matter of public interest, citing Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344 (1956); Tucker v. News Pub. Co., 197 Ga.App. 85(1), 397 S.E.2d 499 (1990); Cox Communications v. Lowe, 173 Ga.App. 812(1), 328 S.E.2d 384 (1985); and Ramsey v. Ga. Gazette Pub. Co., 164 Ga.App. 693(1), 297 S.E.2d 94 (1982). Each of the cases cited by defendant holds that a publisher of information regarding a criminal incident or investigation does not invade the privacy of those involved in that incident or investigation when it identifies them, even if they are involved in the incident or investigation through no fault of their own; ² a crime is a matter of legitimate public interest, and the individual's privacy interest is outweighed by first amendment interests in free expression regarding matters of legitimate public interest. See, e.g., Waters, 212 Ga. at 167, 91 S.E.2d 344. These cases do not control this situation, however, because plaintiff in this case was not involved in a criminal incident or investigation. Unlike the identities of those involved in crimes, the identities of those suffering from AIDS are generally not a matter of public interest, as our legislature has recognized. See OCGA § 24-9-47(b), (o) (placing restrictions on disclosure of "AIDS confidential information" and making it a misdemeanor to violate those restrictions) and § 31-22-9.1(2) (defining "AIDS confidential information" to include the fact that the person is being treated for AIDS). Moreover, we note that defendant in this case, unlike the defendants in the cases it relies on, was only in the position to disclose plaintiff's identity as an AIDS patient because of its promise to plaintiff that there would be no such disclosure. Cf. Cohen v. Cowles Media Co., 501 U.S. 663, 111 S.Ct....