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life, — the right to be let alone; the right to liberty secures the exercise of extensive civil
privileges; and the term “property” has grown to comprise every form of possession —
intangible, as well as tangible.
Although no English cases explicitly articulated a “right to privacy,”
several cases decided under theories of property, contract, or breach of
confidence also included invasion of privacy as a basis for protecting
personal violations. The article encouraged recognition of the common law
right to privacy, as the strength of our legal system lies in its elasticity,
adaptability, capacity for growth, and ability “to meet the wants of an ever
changing society and to apply immediate relief for every recognized
wrong.”. . .
Today, the vast majority of jurisdictions now recognize some form of
the right to privacy. Only Minnesota, North Dakota, and Wyoming have not
yet recognized any of the four privacy torts. Although New York and
Nebraska courts have declined to recognize a common law basis for the
right to privacy and instead provide statutory protection, we reject the
proposition that only the legislature may establish new causes of action.
The right to privacy is inherent in the English protections of individual
property and contract rights and the “right to be let alone” is recognized as
part of the common law across this country. Thus, it is within the province
of the judiciary to establish privacy torts in this jurisdiction.
Today we join the majority of jurisdictions and recognize the tort of
invasion of privacy. The right to privacy is an integral part of our humanity;
one has a public persona, exposed and active, and a private persona,
guarded and preserved. The heart of our liberty is choosing which parts of
our lives shall become public and which parts we shall hold close. . . .
We decline to recognize the tort of false light publicity at this time. We
are concerned that claims under false light are similar to claims of
defamation, and to the extent that false light is more expansive than
defamation, tension between this tort and the First Amendment is increased.
False light is the most widely criticized of the four privacy torts and has
been rejected by several jurisdictions. . . .
Thus we recognize a right to privacy present in the common law of
Minnesota, including causes of action in tort for intrusion upon seclusion,
appropriation, and publication of private facts, but we decline to recognize
the tort of false light publicity. . . .
TOMLJANOVICH, J. dissenting. I would not recognize a cause of action
for intrusion upon seclusion, appropriation or publication of private facts. . .
.
An action for an invasion of the right to privacy is not rooted in the
Constitution. “[T]he Fourth Amendment cannot be translated into a general
constitutional ‘right to privacy.’ ” Katz v. United States, 389 U.S. 347, 350
(1967). Those privacy rights that have their origin in the Constitution are
much more fundamental rights of privacy — marriage and reproduction.
See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (penumbral rights of
privacy and repose protect notions of privacy surrounding the marriage
relationship and reproduction).
We have become a much more litigious society since 1975 when we
acknowledged that we have never recognized a cause of action for invasion
of privacy. We should be even more reluctant now to recognize a new tort.
In the absence of a constitutional basis, I would leave to the legislature
the decision to create a new tort for invasion of privacy.
NOTES & QUESTIONS
1.
Other Remedies? If the Minnesota Supreme Court had rejected the
privacy tort, what other legal remedies might be available to Elli Lake?
2.
Postscript. What happened in Lake after the Minnesota Supreme
Court’s decision? In response to a query from the casebook authors, the
lead attorney for the Lake plaintiff, Keith L. Miller of Miller, Norman
& Associates, Ltd., explained that his client lost at the trial that
followed the remand. He writes: “The jury found that an invasion of
Ms. Lake’s privacy had occurred, but that it did not happen ‘in the
course and scope’ of a Wal-Mart worker’s employment.” In other
words, tort notions of agency were found to apply, and a privacy tort
violation could be attributed to Wal-Mart only if the employee had
carried out the tort in the course and scope of employment. Miller
added: “Our proof was problematic because, expectedly, no employee
could specifically be identified as the culprit. It was all circumstantial.”
Finally, he summarized his experience litigating this case: “Gratifying?
Certainly. Remunerative? Not so much.”
3.
Legislatures vs. Courts. The dissent in Lake contends, in a similar way
as Roberson, that it should be the legislature, not the courts, that
recognizes new tort actions to protect privacy. In New York, the statute
passed in response to Roberson remains the state’s source for privacy
tort remedies. Like New York, some states have recognized the privacy
torts legislatively; other states, like Georgia in Pavesich and Minnesota
in Lake, have recognized them judicially. Which means of recognizing
the torts do you believe to be most justifiable? Why? Does the
legislature have expertise that courts lack? Are courts more or less
sensitive to civil rights issues, such as privacy?
(c) Privacy Protection in Tort Law
The Privacy Torts. Prosser’s classification of these torts survives to this
day. The Restatement (Second) of Torts recognizes four privacy torts:
(1) Public Disclosure of Private Facts. This tort creates a cause of
action for one who publicly discloses a private matter that is “highly
offensive to a reasonable person” and “is not of legitimate concern to the
public.” Restatement (Second) of Torts § 652D (1977).
(2) Intrusion upon Seclusion. This tort provides a remedy when one
intrudes “upon the solitude or seclusion of another or his private affairs or
concerns” if the intrusion is “highly offensive to a reasonable person.”
Restatement (Second) of Torts § 652B (1977).
(3) False Light. This tort creates a cause of action when one publicly
discloses a matter that places a person “in a false light” that is “highly
offensive to a reasonable person.” Restatement (Second) of Torts § 652E
(1977).
(4) Appropriation. Under this tort, a plaintiff has a remedy against one
“who appropriates to his own use or benefit the name or likeness” of the
plaintiff. Restatement (Second) of Torts § 652C (1977).

life, — the right to be let alone; the right to liberty secures the exercise of extensive civil

privileges; and the term “property” has grown to comprise every form of possession —

intangible, as well as tangible.

Although no English cases explicitly articulated a “right to privacy,”

several cases decided under theories of property, contract, or breach of

confidence also included invasion of privacy as a basis for protecting

personal violations. The article encouraged recognition of the common law

right to privacy, as the strength of our legal system lies in its elasticity,

adaptability, capacity for growth, and ability “to meet the wants of an ever

changing society and to apply immediate relief for every recognized

wrong.”. . .

Today, the vast majority of jurisdictions now recognize some form of

the right to privacy. Only Minnesota, North Dakota, and Wyoming have not

yet recognized any of the four privacy torts. Although New York and

Nebraska courts have declined to recognize a common law basis for the

right to privacy and instead provide statutory protection, we reject the

proposition that only the legislature may establish new causes of action.

The right to privacy is inherent in the English protections of individual

property and contract rights and the “right to be let alone” is recognized as

part of the common law across this country. Thus, it is within the province

of the judiciary to establish privacy torts in this jurisdiction.

Today we join the majority of jurisdictions and recognize the tort of

invasion of privacy. The right to privacy is an integral part of our humanity;

one has a public persona, exposed and active, and a private persona,

guarded and preserved. The heart of our liberty is choosing which parts of

our lives shall become public and which parts we shall hold close. . . .

We decline to recognize the tort of false light publicity at this time. We

are concerned that claims under false light are similar to claims of

defamation, and to the extent that false light is more expansive than

defamation, tension between this tort and the First Amendment is increased.

False light is the most widely criticized of the four privacy torts and has

been rejected by several jurisdictions. . . .

Thus we recognize a right to privacy present in the common law of

Minnesota, including causes of action in tort for intrusion upon seclusion,

appropriation, and publication of private facts, but we decline to recognize

the tort of false light publicity. . . .

TOMLJANOVICH, J. dissenting. I would not recognize a cause of action

for intrusion upon seclusion, appropriation or publication of private facts. . .

.

An action for an invasion of the right to privacy is not rooted in the

Constitution. “[T]he Fourth Amendment cannot be translated into a general

constitutional ‘right to privacy.’ ” Katz v. United States, 389 U.S. 347, 350

(1967). Those privacy rights that have their origin in the Constitution are

much more fundamental rights of privacy — marriage and reproduction.

See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (penumbral rights of

privacy and repose protect notions of privacy surrounding the marriage

relationship and reproduction).

We have become a much more litigious society since 1975 when we

acknowledged that we have never recognized a cause of action for invasion

of privacy. We should be even more reluctant now to recognize a new tort.

In the absence of a constitutional basis, I would leave to the legislature

the decision to create a new tort for invasion of privacy.

NOTES & QUESTIONS

1.

Other Remedies? If the Minnesota Supreme Court had rejected the

privacy tort, what other legal remedies might be available to Elli Lake?

2.

Postscript. What happened in Lake after the Minnesota Supreme

Court’s decision? In response to a query from the casebook authors, the

lead attorney for the Lake plaintiff, Keith L. Miller of Miller, Norman

& Associates, Ltd., explained that his client lost at the trial that

followed the remand. He writes: “The jury found that an invasion of

Ms. Lake’s privacy had occurred, but that it did not happen ‘in the

course and scope’ of a Wal-Mart worker’s employment.” In other

words, tort notions of agency were found to apply, and a privacy tort

violation could be attributed to Wal-Mart only if the employee had

carried out the tort in the course and scope of employment. Miller

added: “Our proof was problematic because, expectedly, no employee

could specifically be identified as the culprit. It was all circumstantial.”

Finally, he summarized his experience litigating this case: “Gratifying?

Certainly. Remunerative? Not so much.”

3.

Legislatures vs. Courts. The dissent in Lake contends, in a similar way

as Roberson, that it should be the legislature, not the courts, that

recognizes new tort actions to protect privacy. In New York, the statute

passed in response to Roberson remains the state’s source for privacy

tort remedies. Like New York, some states have recognized the privacy

torts legislatively; other states, like Georgia in Pavesich and Minnesota

in Lake, have recognized them judicially. Which means of recognizing

the torts do you believe to be most justifiable? Why? Does the

legislature have expertise that courts lack? Are courts more or less

sensitive to civil rights issues, such as privacy?

(c) Privacy Protection in Tort Law

The Privacy Torts. Prosser’s classification of these torts survives to this

day. The Restatement (Second) of Torts recognizes four privacy torts:

(1) Public Disclosure of Private Facts. This tort creates a cause of

action for one who publicly discloses a private matter that is “highly

offensive to a reasonable person” and “is not of legitimate concern to the

public.” Restatement (Second) of Torts § 652D (1977).

(2) Intrusion upon Seclusion. This tort provides a remedy when one

intrudes “upon the solitude or seclusion of another or his private affairs or

concerns” if the intrusion is “highly offensive to a reasonable person.”

Restatement (Second) of Torts § 652B (1977).

(3) False Light. This tort creates a cause of action when one publicly

discloses a matter that places a person “in a false light” that is “highly

offensive to a reasonable person.” Restatement (Second) of Torts § 652E

(1977).

(4) Appropriation. Under this tort, a plaintiff has a remedy against one

“who appropriates to his own use or benefit the name or likeness” of the

plaintiff. Restatement (Second) of Torts § 652C (1977).