concurring specially.
Upon reconsideration, the fallacy of the previous majority position has been made clear. There was no waiver of the right to retain from general public knowledge, as disseminated by public broadcast media, the fact that plaintiff, a private person, had contracted AIDS. This is so because, first of all, he had expressly reserved the right to nondisclosure of his identity and the defendant had agreed to conceal it as a condition of his participation in the show.
There are constitutionally protected zones of privacy, some of which are identified in Griswold v. Connecticut, 381 U. S. 479, 484-486 (85 SC 1678, 14 LE2d 510) (1965). Sixty years previously, the Supreme Court of Georgia expressly acknowledged in Georgia law the right of privacy, and the concept that it has many forms. Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68) (1905). In describing it, one of the court’s illustrations was that one “may wish to live a life of privacy as to certain matters and of publicity as to others.” Id. at 196. The right’s foundation is in “the instincts of nature,” id. at 194, among which are “the right of personal security and the right of personal liberty.” Id. at 195. The Georgia Supreme Court recently highlighted these in Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704 (1) (409 SE2d 835) (1991). Griswold referred to this same “ ‘indefeasible right of personal security, personal liberty and private property’ ” as the source of the Fourth and Fifth Amendments. Gris-wold, supra at 484, footnote. Pauesich did not describe the right as being scattered in penumbras throughout the guarantees of the bill of rights, as did Griswold. Instead, it declared the right of privacy, *717within certain limits, to be “guaranteed to persons in [Georgia] by the constitutions of the United States and of the State of Georgia, in those provisions which declare that no person shall be deprived of liberty except by due process of law.” Pavesich, supra at 197. In addition to being guaranteed by Paragraph I of our State’s Bill of Rights, it is more directly guaranteed by Paragraph XXVIII: “The enumeration of rights herein contained as a part of this Constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed.” At the time of Pavesich, it was the Constitution of 1877, Art. I, Sec. V, Par. II.
In any event, the right of privacy extends to embarrassing private facts which, if invaded by unauthorized public disclosure, gives rise to a tort claim against the discloser. Cabaniss v. Hipsley, 114 Ga. App. 367, 370, 372 (151 SE2d 496) (1966). It has been described as “ ‘the tort of public disclosure,’ ... in which the plaintiff claims the right to be free from unwanted publicity about his private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 489 (95 SC 1029, 43 LE2d 328) (1975). See also Restatement (Second) of Torts, § 652D. Only for the purpose of this appeal, in which no issue is made with respect to the jury’s finding in this regard, I assume that the fact that a person has AIDS is offensive to one who learns of it and embarrassing to one who has it.
In this case, plaintiff agreed to the public disclosure of many facts concerning his condition and experience, as this was a talk show and he was subject to unrehearsed questions. But he was to appear anonymously, with his identity a secret from the general public which would be watching and listening. He carved out a zone of privacy which he refused to relinquish and which, as to defendant, he was assured would be protected. That “zone” related not only to what could not be disclosed about him; it''related also to those to whom disclosure was chosen not to be made. The zone of information and the zone of persons informed are both implicated.
The fact that plaintiff had the medical condition AIDS was at first a totally personal and private fact save, it is reasonably inferred, for the medical personnel who discovered it and told him. (Others may have known from them, but there is no evidence of it.) From that point on, he shared the fact with people he selected, for personal purposes and in his own way and time and within his control or within the control of persons he trusted to restrict the information judiciously. He did not broadcast it or authorize others to broadcast it generally, out to members of the public whom he did not know and who did not know him even indirectly.
As to whether the fact is “private, secluded or secret” on the one hand, which it must be in order for disclosure to be recoverable, or *718“public” on the other hand, which is not protected (Cabaniss, supra at 372), is a matter of degree. There is a continuum from what is purely private (a fact only I know about myself) to what is purely public (a fact broadcast by the media). Disclosing a fact to another person does not make it “public” in the commonly understood sense. The question is, at what point, in the numbers or categories of people, does the exposure of the fact become public? What makes it “public?” Telling one hundred members of a confidential support group may retain its private nature for the purposes of this tort, whereas telling one newspaper reporter would give it a decidedly public nature.
It was a jury question in this case, although at times the question may be determined as a matter of law. It was not waived as a matter of law, because there was evidence of an express non-waiver against general public disclosure to thousands of people in and near plaintiff’s place of residence, plus an agreement to honor it. In addition, there was evidence that plaintiff’s disclosures were limited, discriminate, and not so far-reaching as to be conclusively categorized as “public” even though they were, to an extent, uncontrolled. As stated in Pavesich, “[t]he right of privacy may be waived either expressly or by implication, . . . ; but a waiver authorizes an invasion of the right only to such an extent as is necessarily to be inferred from the purpose for which the waiver is made. A waiver for one purpose and in favor of one person or class does not authorize an invasion for all purposes or by all persons and classes.” Pavesich, supra at 191.3 As repeated and applied in Doe v. Sears, 245 Ga. 83, 87 (263 SE2d 119) (1980), “the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver.” Pavesich, supra at 199.
The fact that plaintiff had brought selected people into the protected zone of privacy, or expanded it to include them, did not necessarily erase the zone’s borders. There was evidence that the zone reserved was a fairly confined one, bounded by a relatively small expanse of private or discrete disclosure, as distinct from general public knowledge. There was also evidence that the defendant gave the fact broad public dissemination, beginning with the unidentified in-studio audience which saw him live, and going on to the general viewing public due to the insufficiency of the digitization and the detectable display of his features, clothing, body build, physical mannerisms, and hair color, particularly before digitization was enhanced.
Cox Broadcasting Corp., supra at 494, points out that the commentary to the Restatement limits the tort to instances where the publicity is of facts not already made public.