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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Privacy: The Tort That Wasn’t There

Despite a landmark ruling 20 years ago in Lake v. Wal-Mart, Minnesota courts have generally treated privacy issues as none of their business.

One score ago, the Minnesota Supreme Court brought forth a new notion, conceived in litigation and dedicated to the proposition that all people in Minnesota are entitled to privacy.

The doctrine established 20 years ago by the Minnesota Supreme Court in Lake v. Wal-Mart Stores, Inc.1 has since fallen on hard times. The same tribunal that recognized the principle on July 30, 1998 has subsequently qualified it in ways that make the right barely recognizable today. The 20th anniversary of the common law right of privacy in Minnesota provides an opportune occasion to examine how it has ebbed and flowed over the years.

Privacy prevails

In 1998 Minnesota joined virtually every other state in recognizing an individual’s common law right of privacy. After years of unsuccessful efforts, privacy activists greeted the Minnesota Supreme Court’s decision with enthusiasm. Those who viewed the principle as unnecessary and excessive were commensurately disappointed. 

In the ensuing years, privacy advocates have become dismayed and privacy skeptics more satisfied with how the doctrine has evolved—some would say devolved—from robustness to frailty. The original decision two decades ago constituted a sea change in Minnesota’s law of privacy. But the right recognized in the Lake ruling has not developed as either its supporters wished or its detractors feared. 

For many years, Minnesota courts had rejected common law privacy claims. One renunciation, from 1975, was particularly vivid: “Minnesota has never recognized, either by legislative or court action, cause of action for invasion of privacy,”2 an observation subsequently reiterated by the Supreme Court just two years prior to the Lake decision.3 

But even as the Minnesota judiciary spurned common law privacy, privacy provisions began to emerge in statute. The Minnesota Government Data Practices Act,4 enacted in 1974, combined public access to government data with privacy protections. The Minnesota Health Records and Report Act (1977)5 supplemented the state’s Patients’ Bill of Rights6 by adding protection against the unauthorized release of an individual’s medical records, as well as including additional privacy rights. 

As the end of the millennium approached, nearly all jurisdictions around the country had recognized some sort of privacy right, based either in common law or statute. Only Wyoming, Minnesota, and North Dakota had failed to recognize by common law the general right of privacy. 

That changed in Minnesota with the Lake case. The litigation arose when a trio of young women from northern Minnesota returned from vacationing together in Mexico. One of them had taken a picture of the other two naked, emerging from a shower together. The photo was on a roll of film taken to a Wal-Mart store for processing. 

Wal-Mart returned the photographs with a note saying it had not printed some of the negatives because of their salacious nature, including the nude picture. But the women subsequently learned that the photographs had been developed illicitly and shown throughout the community, prompting them to sue for privacy.

Their case was dismissed, predictably, by the Clay County District Court for failure to state a claim under existing Minnesota law. The Minnesota Court of Appeals grudgingly affirmed, feeling obliged to follow prior case law despite its view that there was no “articulable reason why Minnesota should not recognize this cause of action.”7 

But the Supreme Court, in a 5-2 decision, reversed. The majority opinion, written by Chief Justice Kathleen Blatz, recognized the issue as one of “first impression in Minnesota” and went on to laud privacy as an “integral part of our humanity” and an “inherent right that is worthy of protection against unreasonable or offensive intrusions.” A dissent by Justice Esther Tomljanovich, joined by Justice Edward Stringer, would have preferred leaving individual privacy rights to the Legislature, fearful of creating a new cause of action in a time of increasing litigiousness.8 

The majority decision articulated three forms of protectable privacy: (1) intrusion against seclusion, a type of trespass; (2) misappropriation or exploitation for commercial purposes, normally known as the “right of publicity,” which generally protects well-known people from misuse of their names or identities for pecuniary purposes; and (3) truthful but embarrassing revelations that caused emotional harm to the subject of the disclosures.

Notably, the Court refrained from recognizing a fourth tenet of privacy, the tort of false light, which consists of the dissemination of inaccurate materials that are hurtful to the feelings of the subject, but do not rise to the level of harm to reputation. The Court deemed that claim to fall within the law of defamation. But because the absence of harm to reputation negates a defamation claim, the decision essentially made “false light” a hollow vessel for privacy claimants in Minnesota.

Lake loses

Having established new law in Minnesota, the claimants in Lake nonetheless lost their case on the merits. The case went to trial more than a year after the Supreme Court ruling. A jury found that although the Wal-Mart employees had invaded the women’s privacy, their actions in developing and distributing the photos lay outside the scope and course of their employment—leaving Wal-Mart shielded from liability for the proven privacy intrusion. No damages were awarded and the litigation came to a conclusion. 

While the case seemed to end with a whimper rather than a bang, the privacy right established in the litigation amounted to a clarion call for others eager to assert similar common law claims. It came at the end of a period when one authority described privacy as the “doctrine of the decade,” and others were equally enamored with it.9

Bodah bodes badly

But the new age of privacy law did not endure long. The genuflection to privacy that occurred during the 1990s changed with the new millennium. The new decade brought setbacks for privacy law, returning it to its role as a second-class citizen in Minnesota.

Contrary to the apprehensions expressed in the dissent, the post-Lake era produced a trickle of lawsuits rather than a torrent. The stagnancy of post-Lake litigation owed to a number of factors—most notably, the difficulty of proving damages given the 1st Amendment barriers to privacy-related claims against the media, and a general reluctance on the part of the judiciary to embrace privacy claims.

But the single most important factor in tempering privacy claims after Lake was the decision of the Supreme Court in Bodah v. Lakeville Motor Express, Inc.10 Coming five years after Lake, Bodah began as a temporarily successful class action on behalf of 201 truck drivers who claimed that their employer breached their common law right of privacy by wrongfully distributing their Social Security numbers within the company, in violation of federal law.11 The trial court dismissed the case, but the court of appeals reversed. 

The Supreme Court unanimously held that the lawsuit was not actionable because the Social Security numbers, required to be kept confidential under federal law, were not distributed widely enough to invoke a common law privacy claim. Relying upon §652D of the Restatement (Second) of Torts, the Court reasoned that an individual’s privacy
right is not violated unless there is distribution to the public at large of unwarranted or offensive material or the type of broad disclosure that is substantially certain to become public knowledge. Drawing a “distinction… between private and public communication,” the Court in Bodah held that the unauthorized communication of “private” facts about an individual is not tortious if disseminated only to a single individual, or even a small group of them.12 

 The scope of the communication, not its substance, was central to the restriction of privacy in Bodah. Relying again on the Restatement, the Court, in an en banc unsigned opinion, warned that a privacy claim may be actionable for any “unwarranted publication in a newspaper or magazine… or in hand bill distributed to a large number of persons, or any broadcast over a radio or statement made in an address made to a large audience.”13 Interestingly, the Court failed to mention television or the internet (then still in its relative infancy, but growing rapidly), both of which have sufficiently broad reach to trigger a claim.

Bodah was more than a setback for privacy proponents; it was a crippling blow. It virtually precludes common law breach of privacy claims in many intimate or insular situations, such as the workplace, health care, and other non-media settings. Instead, it limits such claims to media-distributed disclosures with wide distribution, even though such claims almost inevitably run into 1st Amendment issues that pose their own barriers to privacy tort claims. 

Ironically, the Lake claimants probably would not have prevailed under the Bodah standard—because the Wal-Mart employees had not distributed the photos widely, but only showed them to a small group of persons. Another irony is that the privacy tort recognized in Lake dealt with small-scale distribution to people who knew the claimants. This limited communication may be more harmful than a more widespread publication to persons who are not familiar with the subject of the privacy breach. In sum, the Lake-Bodah line of cases creates privacy claims that are difficult to pursue, even where the potential harm is greatest. 

Lake legacy

The retrenchment in the right of privacy in Bodah proved not to be an aberration. The 20-year legacy of Lake, including cases decided both before and after Bodah, has seen restrictions imposed on the right of privacy based on the breadth of the disclosure rather than the impact of the intrusion. 

One of the first post-Lake cases, once again involving Wal-Mart, reflected this limitation. In CLD v. Wal-Mart Stores, Inc.,14 U.S. District Court Judge John Tunheim rejected the lawsuit, which asserted common law privacy and other claims by a Wal-Mart employee who alleged improper disclosure of her pregnancy and abortion by one of her supervisors to her co-workers. Her privacy claim, along with other assertions, failed because the woman did not allege “sufficiently widespread publication” of the confidential data, a requirement that preceded articulation of that tenet
in Bodah. 

In Johnson v. Campbell Mithun15 some six years later, Judge Tunheim drew upon Bodah and his prior ruling in CLD to reject a common law privacy claim by an employee with multiple sclerosis. Her condition, which prompted a leave under the Family Medical & Leave Act (FMLA), was revealed by her employer to “roughly 12 to 15 people,” both internally and to an outside company where she was working on a project. Since this disclosure was not “in the media or ‘in any other form accessible to the public at large,’” the privacy claim failed under the Bodah rationale. 

Similarly, the 8th Circuit Court of Appeals rejected a medical privacy claim in Doe v. Department of Veterans Affairs,16 which arose from a doctor’s disclosure to the patient’s union of his HIV-positive status and his use of marijuana for medical purposes. Although the case arose under a federal statute and involved statutory interpretation rather than tort law, the restrained privacy analysis in the case reflected demonstrable deviation from the pro-privacy reasoning of Lake. Affirming the lower court ruling, the 8th Circuit held that the divulgences did not offend the federal Privacy Act17 because that law only protects data contained in a system of records and not any “[p]ersonal knowledge and memories [that] are not included in official medical records.” 

But an earlier privacy claim arising under a different federal law fared better under a non-privacy statute in Cossette v. Minnesota Power & Light,18 where the unauthorized disclosure by a supervisor at a Duluth utility company of an employee’s unfavorable medical information resulted in her being denied a new position. The supervisor falsely informed the employee’s co-workers and prospective employer that the employee had suffered a back injury and had lifting restrictions, a falsification that was made for the supervisor’s own selfish purposes (to keep from losing a valued employee to another company). Even though the employee was not disabled under the Americans with Disabilities Act (ADA),19 the company was held liable due to the provision of the law that prohibits unauthorized disclosure of medical records.

School suits

Although they did not arise under common law privacy as in Lake, a number of state court cases have addressed privacy-related concerns involving schools. Typically, the cases arise under the Data Practices Act, and the decisions generally have been more protective of privacy interests than similar cases decided by the U.S. Supreme Court under federal statutes. A couple of them will serve to illustrate the pattern.

In Navarre v. South Washington County Schools,20 the state Supreme Court upheld a portion of a public school teacher’s data practices claim due to the school district’s disclosure to parents and the media of complaints about the teacher’s work performance, which the Court deemed to be actionable because school officials went beyond the scope of the public data exception that allows disclosure of the status of claims against a public sector employee “by describing the type of complaint made against the teacher for her poor classroom oversight and supervision.”21 

The failure of a school district to protect a student’s educational data led to a large jury verdict and award of attorney’s fees in Scott v. Minneapolis Special School District No. 1.22 The mother of a seventh grader attending Minneapolis public schools sued after a classmate found a student’s assessment in the school parking lot, where it had apparently blown out of a garbage can. The student’s classmates taunted and humiliated him because of the negative data in the report, which led to a jury verdict of $140,000 for the student. The appellate court upheld the verdict because the school district had not adopted and implemented “appropriate safeguards” to prevent divulgences of private educational data in violation of §13.02, subd. 16 of the Data Practices Act.

Investigative issues

Investigations have spurred a number of privacy claims since Lake. In the first post-Lake case, Summers v. R. & D. Agency, Inc.,23 an employee sued his employer, its workers compensation provider, and a department investigator hired by the insurer to determine whether the employee was cooperating with his workers compensation rehabilitation plan. The court of appeals found that the employee had a viable invasion of privacy claim because of harassing telephone calls, surveillance of family members, and trespass by the investigator, and also deemed the privacy claim established by Lake to be retroactive in order to avoid an injustice perpetrated against people whose privacy was invaded before the Lake case.

An inquiry related to a credit report did not give rise to viable common law claims for publication of private facts or intrusion upon seclusion in Phillips v. Grendahl.24 The privacy claims were based upon the alleged wrongful disclosure of a credit report by a man’s prospective mother-in-law, who was suspicious about his background. The claims were dismissed because the telephone conversation underlying them only mentioned facts that were available from public records, while an intrusion on seclusion claim was not actionable because none of the disclosed information was of a nature that “would [be]… highly offensive to a reasonable person,” and some, including the existence of a judicial child support order, could just as well have been obtained through public records.

 Another investigative incident prompted an unsuccessful privacy claim  in Jaramillo v. Weaver.25 The case concerned a fugitive who had been charged with murdering his wife in Minnesota and, while on the lam, had lived in a home in Oregon using an alias. An Oregon homeowner befriended the fugitive and received a number of calls from the fugitive’s parents in Minnesota asking about their son’s well-being. 

After the fugitive was apprehended, the Oregon resident sued the parents in Minnesota for invasion of privacy and other claims, which the Minnesota Court of Appeals dismissed. It held that the phone calls did not amount to an intrusion into seclusion because there was no substantial and intentional interference with the homeowner’s seclusion. The unwitting host also could not sue for intrusion on seclusion because the facts alleged in the lawsuit did not portray the calls as offensive and the parents were not threatening or intimidating. 

Another statutory form of privacy that has found a home in Minnesota is the federal Driver’s Privacy Protection Act (DPPA). The law, 18 U.S.C. §2721-25, was enacted in 1994 after the slaying of a fashion model in California whose killer had learned where she lived by obtaining her driver’s license data. The measure seeks to prevent such intrusions by prohibiting and penalizing unethical access to, or improper divulgence of, driver’s license information.

After many years of statutory quiescence, Minnesota became ground zero for DPPA litigation in recent years. A spate of civil lawsuits went through the federal court system in this jurisdiction, culminating in a  number of monetary settlements, some of them sizable; a few jury verdicts and favorable judicial awards for claimants; and several setbacks for claimants on grounds of defective pleadings, evidentiary deficiencies, and statute of limitations issues, resulting in victories for public sector entities under the statute, which also applies to private entities.

The DPPA is now winding down after nearly a decade of turbulent litigation that made Minnesota the driver’s license privacy capital of the country.26

Lake legacy

While the first decade after Lake produced a number of common law privacy cases, they have been noticeably less prevalent in the last 10 years, largely because of the limitations imposed by Bodah and subsequent cases. The law of privacy has come a long way in Minnesota: from unrecognized to adopted to nearly orphaned. But privacy is a longstanding principle, dating back to at least 1215 and the English Magna Carta, which recognized a privacy right in an individual’s home. Its present American jurisprudence goes back to 1890 and a highly influential law review article co-authored by Louis Brandeis—later a Supreme Court justice—and Boston attorney Samuel D. Warren, entitled simply “The Right of Privacy.” It launched privacy tort law.27

While Lake has subsided, more privacy issues and claims have surfaced under burgeoning statutes at federal and state levels, including criminal laws, as well as activities on the internet and social media.28

Lake and its progeny may simply be the latest in a long series of peaks and valleys in privacy law, or as the 21st century progresses, “the right of privacy” could become passé as privacy is increasingly sacrificed for the sake of convenience in the digital age. But, the last chapter has not yet been written, and the legacy of Lake continues to linger in Minnesota jurisprudence.

MARSHALL H. TANICK is an attorney with the Twin Cities law firm of Meyer Njus Tanick P.A. He is certified as a Senior Civil Trial Specialist by the Minnesota State Bar Association and represents litigants in a variety of privacy-related matters.

Editor’s note: This article contains a correction posted on 9/9/2018. The original suit in Lake v. Wal-Mart was filed in Clay County, Minnesota, not Cass County as the article originally indicated.

Notes

 582 N.W.2d 281 (Minn. 1998).

2 Hendry v. Conner, 303 Minn. 317, 319 226 N.W.2d 921, 923 (1975); See also Stubbs v. North Memorial Medical Center, 448 N.W.2d 78 (Minn. App. 1989) rev. den’d. (Minn. 1/12/1990); House v. Sportsfilms & Talents, Inc., 351 N.W.2d 684 (Minn. App. 1984).

3 Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 28 (Minn. 1996).

4 Minn. Stat. §13.01, et seq.

5 Minn. Stat. §144.335.

6 Minn. Stat. §144.651.

7 566 N.W.2d 376, 378 (Minn. App. 1997).

8 582 N.W.2d 236-237.

9 R. Reuben, “The Issue of the 1990s.” 10 (Cal. Lawyer 38, 39 (March 1990)).

10 663 N.W.2d 550 (Minn. 2003).

11 42 U.S.C. 1320, et seq.

12 663 N.W.2d at 554.

13 Id.

14 79 F. Supp.2d 1080 (D. Minn. 1999).

15 401 F. Supp.2d 964 (D. Minn. 2005).

16 519 F.3d 458 (8th Cir. 2008).

17 5 U.S.C. 552(a)(b).

18 188 F.3d 964 (8th Cir. 1999).

19 42 U.S.C. §1211.

20 652 N.W.2d 9 (Minn. 2002).

21 652 N.W.2d at 29.

22 2006 WL 997721 (Minn. App. 2006) (unpublished).

23 593 N.W.2d 241 (Minn. App. 1999).

24 312 F.3d 357 (8th Cir. 2002).

25 2007 WL 4303775 (Minn. App.) (unpublished).

26 E.g. Berenger v. Anoka County, 889 F.3d 477 (8th Cir. 2018); McDonough v. Anoka County, 799 F.3d 43 (8th Cir. 2015).

27 4 Harv. L. Rev. 193 (1890).

28 e.g. Minn. Stat. §609.746 (privacy invasion by trespass); Minn. Stat. § 626A.16, et seq., (Privacy Communications Act); 18 U.S.C. §2721 (Drivers Privacy Protection Act); 42 U.S.C. §1320d-6, Health Insurance Portability and Accountability Act of 1996 (HIPAA).

One Comment


  1. Keith L Miller
    Sep 07, 2018

    I was Lake’s counsel. The trial was held in Clay County, Moorhead, rather than Cass County.

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