Multimedia WMAZ v. Kubach

The plaintiff brought suit for invasion of privacy against the defendant, a broadcasting company, for the failure to adequately digitize the claimant’s image in a televised show on the topic of AIDS.

The plaintiff was diagnosed with AIDS in 1987. While originally depressed and in poor condition after diagnosis, the plaintiff had a turnaround in medical condition and emotional outlook after beginning treatment in 1988. The plaintiff chose to share his condition with certain family members, friends, and a support group for persons with AIDS. In 1989, the plaintiff began a part-time job at a dry cleaners, where he assisted customers at the front desk.

In late 1989, the plaintiff agreed to participate in a live call-in show on the topic of AIDS on the understanding that his identity would not be discernible by the viewing public. The broadcasting station was to accomplish this by digitizing the image of the plaintiff. Through a mistake, the first seven seconds of the broadcast containing the plaintiff were not sufficiently digitized and his identity was discernible.

After the incident, the plaintiff became withdrawn and depressed. He was unable to continue his employment as he could not stand to have contact with the general public. The plaintiff also developed shingles, a disease triggered by stress. The plaintiff struggled for a year before beginning to improve in condition. His physical and mental condition, however, never returned to the point previously enjoyed before the broadcast.

The plaintiff brought suit for invasion of privacy. The jury in the trial court found the defendant guilty and awarded $500,000 in general damages and $100 in punitive damages. The defendant appealed on several grounds.

The Court held that the trial judgment was affirmed with the exception that the punitive damages were to be struck. The defendant raised three main arguments and the Court responded as follows:

1. The defendant claimed that the plaintiff had waived his right to privacy on the matter and therefore could not succeed in a case for damages. One of the requirements for a claim on invasion of privacy is that the “facts disclosed to the public must be private, secluded or secret facts and not public ones.” The defendant claimed that the plaintiff’s decision to share his condition with certain family members, friends, and a support group meant that he had already made public disclosure of his condition. The Court differentiated, however, between public disclosure and personal disclosure and therefore held that this incident involved the broadcasting of previously private facts.
2. The defendant claimed that it should not face liability as the disclosure occurred during a broadcast on a matter of public interest. The defendant cited the rule that “a publisher of information regarding a criminal incident or investigation does not invade the privacy of those involved in that incident.” The Court held that the plaintiff here was not in a similar position as this did not involve the disclosure of a person involved in a criminal incident. The Court also referenced the fact that laws created by the legislature suggest a general policy that the identity of those with AIDS is not a matter of public interest.
3. The defendant claimed that the trial court erred in denying the defendant’s motion for directed verdict with regards to the punitive damages. Here, the Court held in favour of the defendant and stated that punitive damages should not have been awarded in this case. Punitive damages require a level of misconduct that is wilful and there is no evidence here that the actions of the broadcasting company were wilful. The broadcasting company intended to digitize the image of the plaintiff, but there was a mistake in the process. Although the Court held that punitive damages were not allowed, it did not question the validity of the remaining $500,000 in general damages.

Several judges concurred in the opinion. One concurring judge gave further discussion to the appropriate interplay between punitive and general damages. Another concurring judge emphasied that, despite the plaintiff’s limited disclosure of his condition to his friends and AIDS support group, he did not waive his privacy rights to retain this information from general public knowledge.

One judge dissented with the opinion, noting that, not only had the plaintiff disclosed his AIDS status to numerous friends, but those friends had, in turn, disclosed the plaintiff’s status to a wider community. This judge determined that “[t]he crux of the matter is that disclosure of his condition had been made by the plaintiff or others to a sufficient number of persons not bound by law or public policy to maintain privacy, such that the plaintiff voluntarily relinquished, or by disclosures made by others, involuntarily forfeited, any expectation that his AIDS condition was a secret.” However, while the dissenting judge believed that the defendant had not breached the plaintiff’s right to privacy, it had breached the duty it had voluntarily assumed to conceal the plaintiff’s identity.

“[T]he 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.’… [W]aiver 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.” Pages 493-94.

“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 the 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.” Page 494.

“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.” Page 495.