Minnesota recently joined the majority of states when it recognized the tort of invasion of privacy. Collectors in Minnesota, like may of their out-state counterparts, are now faced with a difficult question. Can debt collection activities ever rise to the level of culpability under the invasion of privacy tort? Although Minnesota courts have not specifically addressed this issue, other jurisdictions have. The majority of courts have held that debt collection practices are only actionable under this tort if the debt collector's conduct is highly offensive to a reasonable person and constitutes a continuous harassment of the debtor. Even when courts have so held, they nonetheless recognize and need to strike a delicate balance between protecting an individual's privacy and the necessity of a creditor's ability to collect legitimate debts. Already well-established case law should greatly assist in successfully defending invasion of privacy claims sure to be asserted in Minnesota.
In 1998, the Minnesota Supreme Court chose to recognize the common law tort of invasion of privacy. See Lake v. WalMart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). The Lake Court, as most other jurisdictions already had, essentially adopted the elements as outlined in the Restatements (Second) §652B. A person is subject to liability to another for invasion of privacy when one "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person." The Restatements detail four varieties of the tort: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publication of private facts, and (4) false light publicity. See Restatements (Second) §§652B - 652E. The Minnesota Supreme Court in Lake recognized three of the four varieties of the tort; declining to adopt false light publicity. See Lake 582 N.W.2d at 235.
Given the recency of the Lake case, few Minnesota courts have dealt with a case involving alleged invasion of privacy. To be sure, none have substantially analyzed the precise type of conduct necessary to prove liability under this tort. Again, while Minnesota appellate courts have not yet addressed the issue as to whether collection efforts by a collector will can give rise to an invasion of privacy claim, many other jurisdictions have. Unfortunately, the majority of courts do recognize that under certain circumstances, collection efforts can rise to the level of an invasion of privacy.
All of the courts recognize, however, that a creditor's right to reasonably pursue a debtor must be preserved. For instance, the Kansas Supreme Court acknowledged that:
In this area of the developing law, the business community must be given some latitude to pursue reasonable methods of collecting debts even though such methods often might result in some inconvenience or embarrassment to the debtor.
Dawson v. Associates Fin. Serv. Co. of Kansas, 529 P.2d 104 (Kan. 1974); see also Jackson v. Peoples Fed. Credit Union, 604 P.2d 1025 (Wash. Ct. App. 1979) (In determining whether a creditor's conduct gives rise to liability the court must be careful to not "emasculate legitimate creditor remedies on the one hand, or open the floodgates of litigation on the other.")
However, the Dawson Court went on to reason that a collector who conducts collection efforts in a manner that is oppressive or outrageous and highly offensive to a reasonable person can be held liable under the tort. See id. at 110-112.
With this balancing test in mind, several courts have addressed the issue of what constitutes oppressiveness or outrage giving rise to an actionable violation of privacy. For example, in 1975, the Minnesota Supreme Court, although refusing to recognize an invasion of privacy tort, did analyze the issue in the context of a creditor publicly disclosing a debtor's debt. See Hendry v. William Conner, 226 N.W.2d 921 (Minn. 1975). In Hendry the plaintiff took her child to a hospital emergency room for treatment. Id. While waiting to have her child admitted, an employee of the credit department came to the waiting room and told the plaintiff that her child could not be admitted until a prior outstanding bill was paid. Id. The Hendry Court held that even if Minnesota did recognize a tort for invasion of privacy [which at the time it did not], a single occurrence in the hospital waiting room would not constitute an actionable violation of the plaintiff's right of privacy. See id. at 922. Citing the comments to the Restatements (Second), the Court reasoned that a creditor's conduct, to be actionable for this tort, generally must constitute a consistent pattern or continuous harassment of the debtor. See Hendry 226 N.W.2d at 922.
Similarly, the District Court of Ohio held that a collector has a right to undertake reasonable actions to pursue the debtor and attempt to persuade payment. See Chlanda v. Wymard, et al., 1995 U.S. Dist. LEXIS 14394 (S.D. Ohio 1995). In the Chlanda case, a debtor filed a complaint against a collector for an alleged violation of the FDCPA, a common law claim of invasion of privacy, and an alleged violation of the Ohio State Sales Practices Act. The collector had sent plaintiff three letters and placed one phone call in an attempt to recover an unpaid debt.
The Chlanda court held that efforts to collect debts become actionable under the common law invasion of privacy tort only when the collector initiates a "campaign to harass and torment the debtor." See Id. The Chlanda plaintiff urged the court to determine that, as a matter of law even a single debt collection incident can give rise to liability under the invasion of privacy tort. Id. Fortunately, the Chlanda court rejected plaintiff's argument, reasoning that the collection efforts plaintiff complained of did not constitute "a campaign of harassment." Further, relying on other well-established case law, the court held that even a single telephone call in which the caller does use abusive language does not give rise to liability under the tort. See Id. at 25. citing Haller v. Phillips, 591 N.E.2d 305 (Ohio App. 1990).
Likewise, the Missouri Supreme Court held that six to eight phone calls over the course of several months in an attempt to collect an unpaid debt would not constitute invasion of privacy. See Sofka v. Thal et al., 662 S.W.2d 502 (Missouri 1983); see also Norris v. Moskin Stores, Inc., 132 So.2d 321 (Ala. 1961).
There . . . is no liability unless the interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which there is not liability for knocking at the plaintiff's door; or calling him on the telephone on one or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.
Sofka 662 S.W.2d. at 511 citing Restatement (Second) §650B comment d. Using often cited comments to the Restatements, the Sofka court held the collector's conduct was not actionable under the tort because it did not constitute "hounding" the plaintiff.
Using the same "campaign of harassment" test, the Ohio Supreme Court did hold that a collector's conduct was actionable under the common law tort because the defendants initiated a systematic campaign of harassment in order to collect plaintiff's unpaid debt. See Housh v. Peth, et al., 133 N.E.2d 340 (Ohio 1956). In Housh, a collector called the plaintiff several times during the day, at her place of employment, trying to collect an unpaid debt. On one occasion, the creditor called plaintiff three times within 15 minutes at her place of employment. See id. The Court found that this pattern of calling constituted a "campaign of harassment" and was therefore actionable under the invasion of privacy tort. See id. at 344.
The case law developed to this point clearly establishes that in order to be an actionable invasion of privacy, a collector's conduct must be highly offensive to a reasonable person and must constitute a campaign of harassment. Although no Minnesota courts have specifically addressed this tort in the debt collection context, it would seem Minnesota courts would be persuaded by the reasoning from cases such as Hendry as well as the holdings from similar cases in other jurisdictions. As many of the courts analyzing the issue aptly recognize, creditors and collectors do have the right to make reasonable, diligent attempts at debt collection. Debtors cannot prevail on an invasion of privacy claim simply because the debt collection efforts result in reasonable intrusions upon the debtor's seclusion or embarrassment or inconvenience to the debtor.
The FDCPA already adequately protects debtors from truly unfair or harassing debt collection efforts. Minnesota courts are likely to be persuaded by well-established case law from other jurisdictions which only hold a collector liable under the invasion of privacy tort only when the collector's conduct is particularly egregious and offensive. Minnesota courts should follow suit with other jurisdictions thereby effectively striking a balance between the need to protect an individual's privacy and a creditor's right to reasonably pursue a debt.