wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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do “not simply uphold the interests of individuals against the demands
of the community, but instead safeguard[ ] rules of civility that in some
significant measure constitute both individuals and community.” Post
argues that the torts establish boundaries between people, which when
violated create strife. The privacy torts promote “forms of respect [for
other people] by which we maintain a community.”34
3.
Prosser’s Privacy at 50. In 2010, the California Law Review held a
symposium at Berkeley Law School to celebrate the fiftieth anniversary
of the publication of Prosser’s Privacy. The verdict on the momentous
article is mixed. Lior Strahilevitz advocates abandoning the Prosser
categories and replacing them with a unitary tort for invasion of
privacy. The key under the recast privacy tort would simply be whether
“the gravity of the harm to the plaintiff’s privacy interest [is]
outweighed by a paramount public policy interest.”35
Along similar negative lines, Neil Richards and Daniel Solove
concluded that Prosser’s view of the privacy tort has been “rigid and
ossifying.” Dean Prosser “stunted [privacy law’s] development in ways
that have limited its ability to adapt to the problems of the Information
Age.” The authors conclude that tort law should look beyond the
narrow categories Prosser proposed in order for it to “regain the
creative spirit it once possessed.” One way for tort law to do so, in their
view, would be to adopt the English approach to the tort of
confidentiality.36
In contrast, Paul Schwartz and Karl-Nikolaus Peifer praised Prosser:
“Prosser pragmatically assessed the kind and amount of privacy that the
American legal system was willing to accommodate.” In their
summary, “Prosser’s contribution generated useful doctrinal categories
where previously had been unclassified cases and a lingering air of
skepticism towards the tort.”37
Would it be useful to extend the four privacy torts as Richards and
Solove propose? Or would a better approach be to replace Prosser’s
four torts with pure balancing as Strahilevitz advocates? Or do
Prosser’s categories adequately capture the various privacy interests
that should be addressed by tort law?
LAKE V. WAL-MART STORES, INC.
582 N.W.2d 231 (Minn. 1998)
BLATZ, C.J. . . . Elli Lake and Melissa Weber appeal from a dismissal of
their complaint for failure to state a claim upon which relief may be
granted. The district court and court of appeals held that Lake and Weber’s
complaint alleging intrusion upon seclusion, appropriation, publication of
private facts, and false light publicity could not proceed because Minnesota
does not recognize a common law tort action for invasion of privacy. We
reverse as to the claims of intrusion upon seclusion, appropriation, and
publication of private facts, but affirm as to false light publicity.
Nineteen-year-old Elli Lake and 20-year-old Melissa Weber vacationed
in Mexico in March 1995 with Weber’s sister. During the vacation, Weber’s
sister took a photograph of Lake and Weber naked in the shower together.
After their vacation, Lake and Weber brought five rolls of film to the
Dilworth, Minnesota Wal-Mart store and photo lab. When they received
their developed photographs along with the negatives, an enclosed written
notice stated that one or more of the photographs had not been printed
because of their “nature.”
In July 1995, an acquaintance of Lake and Weber alluded to the
photograph and questioned their sexual orientation. Again, in December
1995, another friend told Lake and Weber that a Wal-Mart employee had
shown her a copy of the photograph. By February 1996, Lake was informed
that one or more copies of the photograph were circulating in the
community.
Lake and Weber filed a complaint against Wal-Mart Stores, Inc. and one
or more as-yet unidentified Wal-Mart employees on February 23, 1996,
alleging the four traditional invasion of privacy torts — intrusion upon
seclusion, appropriation, publication of private facts, and false light
publicity. . . . The district court granted Wal-Mart’s motion to dismiss,
explaining that Minnesota has not recognized any of the four invasion of
privacy torts. The court of appeals affirmed.
Whether Minnesota should recognize any or all of the invasion of
privacy causes of action is a question of first impression in Minnesota. . . .
This court has the power to recognize and abolish common law
doctrines. The common law is not composed of firmly fixed rules. Rather,
as we have long recognized, the common law:
is the embodiment of broad and comprehensive unwritten principles, inspired by natural
reason, an innate sense of justice, adopted by common consent for the regulation and
government of the affairs of men. It is the growth of ages, and an examination of many of its
principles, as enunciated and discussed in the books, discloses a constant improvement and
development in keeping with advancing civilization and new conditions of society. Its
guiding star has always been the rule of right and wrong, and in this country its principles
demonstrate that there is in fact, as well as in theory, a remedy for all wrongs.
As society changes over time, the common law must also evolve:
It must be remembered that the common law is the result of growth, and that its development
has been determined by the social needs of the community which it governs. It is the
resultant of conflicting social forces, and those forces which are for the time dominant leave
their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules
for the determination, protection, and enforcement of legal rights. Manifestly it must change
as society changes and new rights are recognized. To be an efficient instrument, and not a
mere abstraction, it must gradually adapt itself to changed conditions.
To determine the common law, we look to other states as well as to
England.
The tort of invasion of privacy is rooted in a common law right to
privacy first described in an 1890 law review article by Samuel Warren and
Louis Brandeis. The article posited that the common law has always
protected an individual’s person and property, with the extent and nature of
that protection changing over time. The fundamental right to privacy is both
reflected in those protections and grows out of them:
Thus, in the very early times, the law gave a remedy only for physical interference with life
and property, for trespass vi et armis. Then the “right to life” served only to protect the
subject from battery in its various forms; liberty meant freedom from actual restraint; and the
right to property secured to the individual his lands and his cattle. Later, there came a
recognition of a man’s spiritual nature, of his feelings and his intellect. Gradually the scope
of these legal rights broadened; and now the right to life has come to mean the right to enjoy

do “not simply uphold the interests of individuals against the demands

of the community, but instead safeguard[ ] rules of civility that in some

significant measure constitute both individuals and community.” Post

argues that the torts establish boundaries between people, which when

violated create strife. The privacy torts promote “forms of respect [for

other people] by which we maintain a community.”34

3.

Prosser’s Privacy at 50. In 2010, the California Law Review held a

symposium at Berkeley Law School to celebrate the fiftieth anniversary

of the publication of Prosser’s Privacy. The verdict on the momentous

article is mixed. Lior Strahilevitz advocates abandoning the Prosser

categories and replacing them with a unitary tort for invasion of

privacy. The key under the recast privacy tort would simply be whether

“the gravity of the harm to the plaintiff’s privacy interest [is]

outweighed by a paramount public policy interest.”35

Along similar negative lines, Neil Richards and Daniel Solove

concluded that Prosser’s view of the privacy tort has been “rigid and

ossifying.” Dean Prosser “stunted [privacy law’s] development in ways

that have limited its ability to adapt to the problems of the Information

Age.” The authors conclude that tort law should look beyond the

narrow categories Prosser proposed in order for it to “regain the

creative spirit it once possessed.” One way for tort law to do so, in their

view, would be to adopt the English approach to the tort of

confidentiality.36

In contrast, Paul Schwartz and Karl-Nikolaus Peifer praised Prosser:

“Prosser pragmatically assessed the kind and amount of privacy that the

American legal system was willing to accommodate.” In their

summary, “Prosser’s contribution generated useful doctrinal categories

where previously had been unclassified cases and a lingering air of

skepticism towards the tort.”37

Would it be useful to extend the four privacy torts as Richards and

Solove propose? Or would a better approach be to replace Prosser’s

four torts with pure balancing as Strahilevitz advocates? Or do

Prosser’s categories adequately capture the various privacy interests

that should be addressed by tort law?

LAKE V. WAL-MART STORES, INC.

582 N.W.2d 231 (Minn. 1998)

BLATZ, C.J. . . . Elli Lake and Melissa Weber appeal from a dismissal of

their complaint for failure to state a claim upon which relief may be

granted. The district court and court of appeals held that Lake and Weber’s

complaint alleging intrusion upon seclusion, appropriation, publication of

private facts, and false light publicity could not proceed because Minnesota

does not recognize a common law tort action for invasion of privacy. We

reverse as to the claims of intrusion upon seclusion, appropriation, and

publication of private facts, but affirm as to false light publicity.

Nineteen-year-old Elli Lake and 20-year-old Melissa Weber vacationed

in Mexico in March 1995 with Weber’s sister. During the vacation, Weber’s

sister took a photograph of Lake and Weber naked in the shower together.

After their vacation, Lake and Weber brought five rolls of film to the

Dilworth, Minnesota Wal-Mart store and photo lab. When they received

their developed photographs along with the negatives, an enclosed written

notice stated that one or more of the photographs had not been printed

because of their “nature.”

In July 1995, an acquaintance of Lake and Weber alluded to the

photograph and questioned their sexual orientation. Again, in December

1995, another friend told Lake and Weber that a Wal-Mart employee had

shown her a copy of the photograph. By February 1996, Lake was informed

that one or more copies of the photograph were circulating in the

community.

Lake and Weber filed a complaint against Wal-Mart Stores, Inc. and one

or more as-yet unidentified Wal-Mart employees on February 23, 1996,

alleging the four traditional invasion of privacy torts — intrusion upon

seclusion, appropriation, publication of private facts, and false light

publicity. . . . The district court granted Wal-Mart’s motion to dismiss,

explaining that Minnesota has not recognized any of the four invasion of

privacy torts. The court of appeals affirmed.

Whether Minnesota should recognize any or all of the invasion of

privacy causes of action is a question of first impression in Minnesota. . . .

This court has the power to recognize and abolish common law

doctrines. The common law is not composed of firmly fixed rules. Rather,

as we have long recognized, the common law:

is the embodiment of broad and comprehensive unwritten principles, inspired by natural

reason, an innate sense of justice, adopted by common consent for the regulation and

government of the affairs of men. It is the growth of ages, and an examination of many of its

principles, as enunciated and discussed in the books, discloses a constant improvement and

development in keeping with advancing civilization and new conditions of society. Its

guiding star has always been the rule of right and wrong, and in this country its principles

demonstrate that there is in fact, as well as in theory, a remedy for all wrongs.

As society changes over time, the common law must also evolve:

It must be remembered that the common law is the result of growth, and that its development

has been determined by the social needs of the community which it governs. It is the

resultant of conflicting social forces, and those forces which are for the time dominant leave

their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules

for the determination, protection, and enforcement of legal rights. Manifestly it must change

as society changes and new rights are recognized. To be an efficient instrument, and not a

mere abstraction, it must gradually adapt itself to changed conditions.

To determine the common law, we look to other states as well as to

England.

The tort of invasion of privacy is rooted in a common law right to

privacy first described in an 1890 law review article by Samuel Warren and

Louis Brandeis. The article posited that the common law has always

protected an individual’s person and property, with the extent and nature of

that protection changing over time. The fundamental right to privacy is both

reflected in those protections and grows out of them:

Thus, in the very early times, the law gave a remedy only for physical interference with life

and property, for trespass vi et armis. Then the “right to life” served only to protect the

subject from battery in its various forms; liberty meant freedom from actual restraint; and the

right to property secured to the individual his lands and his cattle. Later, there came a

recognition of a man’s spiritual nature, of his feelings and his intellect. Gradually the scope

of these legal rights broadened; and now the right to life has come to mean the right to enjoy