Multimedia WMAZ, Inc. v. Kubach

443 S.E.2d 491, 212 Ga. App. 707, 1994 Ga. App. LEXIS 401

• Court: Court of Appeals of Georgia
• Decided: March 18, 1994
• Docket: A93A1451
• Status: Published

Opinions

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 tbat 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 tbat “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 SE2d 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. 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 FSupp. 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 people¹ 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 SE 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 SE2d 344) (1956); Tucker v. News Pub. Co., 197 Ga. App. 85 (1) (397 SE2d 499) (1990); Cox Communications v. Lowe, 173 Ga. App. 812 (1) (328 SE2d 384) (1985); and Ramsey v. Ga. Gazette Pub. Co., 164 Ga. App. 693 (1) (297 SE2d 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. 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., _ U. S. _ (111 SC 2513, 115 LE2d 586) (1991) (first amendment does not prohibit recovery of damages from newspaper for breach of promise to keep source’s name confidential).

Defendant suggests we should nonetheless rule in its favor on policy grounds, perhaps fashioning a rule analogous to the Good Samaritan Statute (OCGA § 51-1-29) which would provide that broadcasters should be insulated from liability for anything that happens as a result of their negligence when they are broadcasting a “public service” show. Otherwise, it posits, broadcasters will refuse to produce shows with AIDS patients such as the one plaintiff participated in because of fear of liability, and these shows are important to educate the public. This policy argument cuts both ways, however: broadcasters may shy away from producing such shows if this verdict is upheld, but AIDS patients who have not publicly acknowledged their disease may refuse to participate in such shows if it is not. In any case, the policy decision is one for the legislature to make, as it did when it passed the Good Samaritan Statute.

3. Defendant next argues that its motion for directed verdict should at least have been granted with respect to punitive damages. “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). We agree that the evidence was insufficient to support an award of punitive damages. We do not agree that the entire award (including the general damage award) must be vacated because the $100 punitive damages award is unsupported, however. Petrolane Gas Sue. v. Eusery, 193 Ga. App. 860 (389 SE2d 355) (1989), in which we vacated an entire award because the trial court improperly instructed the jury on punitive damages, is distinguishable because the verdict in that case was a general verdict: the jury did not specify how much of its award was for general damages and how much was for punitive damages, and we could not guess. Here, on the other hand, the trial court held a bifurcated trial as mandated by OCGA § 51-12-5.1 (d), and having been properly instructed, the jury awarded $500,000 in general damages and $100 in punitive damages. The $500,000 is identifiable and separable and was in fact the minimum amount sought by plaintiff for his general damages. There is no suggestion that any evidence was admitted in the first portion of the trial which would not have been admitted had the possibility of punitive damages been excluded. Thus, we affirm the judgment below on condition that the punitive damage award be written off. See Cassidy v. Wilson, 196 Ga. App. 6, 9 (395 SE2d 291) (1990).

4. Defendant contends that since plaintiff took the position that his homosexual lifestyle was irrelevant to the issues at trial, the lower court erred in excusing for cause three potential jurors who expressed bias against homosexuals. This contention is without merit. See Morris v. Bonner, 183 Ga. App. 499 (1) (359 SE2d 244) (1987) (trial court has broad discretion in dismissing potential juror for bias).

5. Defendant argues that the trial court erred in submitting the question of lost wages to the jury. It argues that there is insufficient evidence of what plaintiff might have earned, so any award must be speculative. We disagree. Plaintiff and his former boss testified that prior to the broadcast, plaintiff worked 20 to 25 hours a week for the equivalent of $3.35 an hour. Plaintiff’s former boss also testified that she would have continued to employ plaintiff indefinitely if he had been able to wait on customers, but that he was unable to do so after the broadcast because he was afraid to deal with the public. This evidence provided a sufficient basis for an award of lost wages.

6. Defendant asserts that the trial court erroneously ruled that damage to reputation is not a necessary element of an invasion of privacy cause of action, and consequently erred in excluding evidence defendant wanted to introduce regarding plaintiff’s social history. We agree with the trial court that damage to reputation is not necessary to establish an invasion of privacy. While language in the early cases suggested that the interest protected by the tort was that of reputation, see, e.g., Cabaniss, 114 Ga. App. at 372, more recent cases have recognized that invasion of privacy is an action for personal injury which may involve injury to reputation but also may involve injury to “the plaintiffs’ personal sensibilities and mental repose.” Hudson v. Montcalm Pub. Corp., 190 Ga. App. 629, 634 (379 SE2d 572) (1989). In this case, plaintiff presented evidence that defendant’s actions caused him severe mental distress with physical repercussions. Thus, the absence of evidence of damage to his reputation is not fatal to his cause of action. Moreover, we note that the evidence defendant sought to introduce — excerpts from the “Social History” portion of plaintiff’s medical records — would not have been relevant to show reputation anyway, as it did not reflect information known in the general community.

7. We have reviewed defendant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed on condition.

Cooper, Johnson and Blackburn, JJ., concur. Beasley, P. J., concurs and also concurs specially. McMurray, P. J., Birdsong, P. J., Andrews and Smith, JJ., dissent.

1 Even if we accept defendant’s estimate of approximately 60 individuals, this number is relatively small in relation to the television viewing public in the Macon area.

2 Defendant suggests that in Lowe, as in this case, the plaintiff was not involved in a criminal incident or investigation, and the trial court’s denial of the publisher’s motion for summary judgment was nonetheless reversed there. However, the plaintiff in Lowe, while not directly involved in a criminal investigation, was a prisoner in an institution under investigation; and the fact of his incarceration (the “disclosure” of which was the subject of his lawsuit) was already a matter of public record. Here, plaintiff is not even indirectly involved in a criminal investigation, and the fact of his disease was not a matter of public record prior to this broadcast.