Ten years after ‘Lake,’ still no flood of privacy claims
by Michelle Lore
The wave of litigation some feared hasn’t materialized.
Ten years ago, the Minnesota Supreme Court allowed two women to sue Wal-Mart and several of its employees for allegedly developing and circulating nude photographs of the women among the community.
In letting the claim to go forward in Lake v. Wal-Mart Stores, Inc., et al., the high court declared for the first time that a right to privacy exists in the common law of Minnesota. The causes of action available under the doctrine were identified as:
• intrusion upon seclusion,
• misappropriation of identity and
• publication of private facts.
At the time, it was widely feared by defense practitioners that the decision would create a flood of litigation in the privacy area. To the contrary, the commonlaw privacy cause of action has created little more than a trickle of cases into the courts.
Legal limitations
The Lake case was initially dismissed by a Clay County District Court judge because it didn’t state a claim based on Minnesota precedent. The Court of Appeals affirmed.
But in a 5-2 decision written by then-Chief Justice Kathleen Blatz, the high court reversed, lauding the right of privacy as an “integral part of our humanity.” The dissenters, on the other hand, preferred to leave to the Legislature the decision to create the new tort. (A year later, a Clay County jury found that the women’s right to privacy had been invaded, but also that the action by the Wal-Mart employees was outside of the scope of their employment, so the company was not liable.)
Moorhead attorney Keith Miller, who represented the plaintiffs in Lake, said “it was a wonderful opportunity to make new law in the state … but it wasn’t the boon to us plaintiffs’ attorneys that the defense bar thought it would be.”
Minneapolis employment attorney Marshall H. Tanick agreed. “Courts have never warmed up to the privacy cause of action,” he said.
At the time Lake came down, employers were legitimately concerned about its potential impact, said Minneapolis employment attorney Andrew J. Voss. It’s always possible that a new cause of action will create a lot of litigation, “but from my perspective, that hasn’t materialized,” he said.
Rather, according to Voss, part of what Lake — and other privacy laws — did for Minnesota employers was force them to address privacy expectations in the workplace.
During the late 1990s and early 2000s e-mail and other electronic devices were becoming commonplace and employers were struggling with how to make sure that employees’ expectations with regard to electronic communications were in line with the company’s policies, Voss explained. “That resulted in a lot of discussion and policymaking.”
Tanick opined that one reason there hasn’t been an influx of common law privacy claims is the Minnesota Supreme Court’s decision in Bodah v. Lakeville Motor Express, Inc., which came down in 2003.
In Bodah, the high court determined that for an invasion of privacy claim to be actionable, the matter must be communicated to the public at large. The court identified publication in a newspaper, magazine or radio broadcast, or in a widely distributed handbill as examples of public communication.
Practitioners contend that the decision created a significant retrenchment in the privacy area.
The Lake case was important because it highlighted privacy as a cause of action, but it’s been almost “eviscerated” by Bodah, said Tanick. He added that the facts in the Lake case would not have been actionable under the high court’s decision in Bodah. “Bodah undercuts and almost undermines Lake,” he said.
According to Tanick, while Bodah may have made it easier to pursue a claim against the media, media outlets have a variety of defenses available to them that make it difficult for a plaintiff to succeed on such a claim. “Privacy claims are tough to pursue because of all the hurdles you have,” he said.
Other obstacles include the subjective nature of the claim and the difficulty of proving emotional harm damages, which plaintiffs’ attorneys concede are speculative.
“How much are hurt feelings worth?” Miller questioned. “There is an inherent distrust by courts in cases where you are talking about emotional injury.”
Brainerd attorney Erik A. Askegaard unsuccessfully tried an invasion of privacy claim last summer and knows from personal experience how subjective the cases can be. “Just because you believe your client’s privacy has been invaded, doesn’t mean you should take the case,” he said.
Askegaard said it’s important to consider whether the impact on the client was severe enough for a jury to be “moved” by it. “If you are going to require seven or eight people to take time away from their jobs, families and lives in order to require them to serve on a jury, you better have a case which will come across to them as being pretty important,” he said.
Adding on
Typically, most invasion of privacy claims today are brought as “add-ons” to other causes of action.
“It’s another claim that gets added to the list,” said Schmitt. “It’s rare that only a privacy claim would be brought.”
In his own practice, Schmitt has seen the claim arise out of conduct like:
• an employer’s use of a private investigator in suspected cases of workers’ compensation or disability abuses;
• an employer’s posting of Social Security numbers; and
• discussions among employees of personal information contained in a co-worker’s or subordinate’s personnel file.
Voss added that he occasionally sees privacy claims brought in conjunction with disability claims. A plaintiff may allege that her employer discriminated against her based on her disability and also engaged in inappropriate discussions of her medial information, he explained.
According to Schmitt, however, when invasion of privacy claims are brought as add-on claims, they often get dismissed at the summary judgment stage. “They are no different from other employment cases,” he said.
Continued growth
Despite the dearth of common-law privacy litigation over the past decade, practitioners are confident that privacy-related claims will continue to grow in importance over the years, especially in the medical area.
More regulations and statutes dealing with privacy are in place now than ever before, said Schmitt, noting that just a couple years before Lake, the Health Information Portability and Accountability Act was enacted by Congress to protect personal information about consumer health records.
“Medical privilege is probably the hottest area in privacy litigation,” he said. “The interest in maintaining the confidentiality of [medical information] is so high.”
Tanick said that plaintiffs may also assert medical-related privacy claims under the Minnesota Health Records Act, which is broader than Lake and allows recovery of attorney fees. They may also pursue privacy claims under the Americans with Disabilities Act and the Government Data Practices Act.
“Courts are more receptive when there’s a statute involved,” he said.
