Minnesota recognized the tort of invasion of privacy in 1998. Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 236 (Minn. 1998). There are three versions of the common law invasion of privacy tort under Minnesota law: (1) intrusion upon seclusion; (2) appropriation; and (3) publication of private facts. Since Lake, the number of reported court decisions involving invasion of privacy claims has been lower than some expected, and the number of successful claims even lower.
A federal court in Minnesota recently held that an invasion of privacy claim against a police officer was properly pled and supported a request for punitive damages. McNamara v. Kuehne, No. 22-CV-47 (NEB/DJF) (D. Minn. Feb. 23, 2023). In that case, the plaintiff, McNamara, was involved in a car accident. She alleged that a police officer on the scene took her phone, discovered pictures of her naked, texted them to his own phone, and then deleted the text messages.
The Defendant argued that her claim should be construed as a claim of “false light publicity”, a type of invasion of privacy tort that was expressly not recognized by the Minnesota Supreme Court in Lake. A U.S. Magistrate Judge disagreed, holding that the allegations supported a claim for intrusion upon seclusion. As the court explained:
“Plaintiff does not allege Defendant distributed her photos, but that fact is immaterial to an intrusion upon seclusion claim. “Intrusion upon seclusion occurs when one ‘intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or [her] private affairs or concerns … if the intrusion would be highly offensive to a reasonable person.” [Lake] at 233 (quoting Restatement (Second) of Torts, § 652B (1977)). As the commentary to the Restatement explains, this form of invasion of privacy “does not depend upon any publicity given to the person whose interest is invaded or to [her] affairs. It consists solely of an intentional interference with [her] interest in solitude or seclusion, either as to [her] person or as to [her] private affairs or concerns, of a kind that would be highly offensive to a reasonable [person].” Id. at cmt. a. Plaintiff’s allegations—that Defendant abused his authority as a police officer to unlawfully search Plaintiff’s phone without a warrant, and that he sent Plaintiff’s nude photos to his personal cell phone—are sufficient to allege an intentional interference with Plaintiff’s interest in solitude or seclusion under Lake. Plaintiff accordingly states a valid claim for relief.”
A U.S. District Judge accepted the Magistrate Judge’s recommendation.
This decision in McNamara shows that invasion of privacy claims in Minnesota are alive and well and may be appropriate when a bad actor obtains digital photos or other data from someone else’s device without permission.
About the Author:
John Ella is a Minnesota privacy law attorney and certified as an Information Privacy Professional (CIPP) by the International Association of Privacy Professionals (IAPP). He can be reached at 612.455.6237 or firstname.lastname@example.org.