In a landmark decision expected to have far-reaching consequences for businesses that collect and use personal information about their customers, patients, employees or consumers, the Minnesota Supreme Court ruled recently that Minnesota should join a vast majority of states that recognize a civil cause of action for "invasion of privacy." Elli Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231; 26 Media L. Rep. 2175 (Minn.1998).
Holding that "as society changes over time, the common law must also evolve . . .," the Court embraced three of the four distinct causes of action comprising the tort known as "invasion of privacy." Claims now recognized in Minnesota include the torts of intrusion on seclusion, misappropriation of name or likeness, and publication of private facts. The Court declined, however, to recognize a cause of action based on the "false light" privacy doctrine, concluding that such claims implicate the First Amendment and are better evaluated using traditional defamation principles.
In Lake, the plaintiffs alleged that a Wal-Mart employee misappropriated and distributed copies of a photograph showing them naked. Both the District Court and Court of Appeals dismissed the women's lawsuit for failure to state a claim under existing state law precedent. In reversing the lower courts, the Supreme Court stated that "The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close." The Court's decision has been called "a sea change" in Minnesota jurisprudence.
In an era of technological change that exponentially has increased the types and amount of personal information that can be digitally sorted, collected and made accessible to others, businesses that collect and use such personal information must carefully evaluate the Lake case's teachings. The most common privacy tort involves unreasonable intrusion (physical or otherwise) upon another's solitude, seclusion, or private affairs. Examples include the use of eavesdropping devices to gain access to private conversations. The second type of privacy claim -- publication of private matters -- involves the dissemination of information that "offends ordinary sensibilities." This information may relate to a person's sexual activity, health, social or economic affairs. As the power of technology to process significant amounts of personal information has grown, the potential for unauthorized and/or inadvertent disclosure of such data has increased. A number of commercial websites, for example, have considered compiling detailed records regarding their customers' reading, shopping, entertainment and web-surfing activities. Whether such practices can survive consumers' privacy challenges remains to be seen.
The final privacy tort now recognized in Minnesota - the tort of appropriation - prohibits the use of a person's name or likeness for advertising or trade purposes without consent. While this development should pose few challenges for companies already advertising on a national scale, less sophisticated and start-up businesses unfamiliar with this standard may encounter new-found exposure to claims where advertising or publicity campaigns are developed informally or without the benefit of professional assistance.