State high court allows privacy suit over copied photographs

MINNESOTA–In late July the state Supreme Court in St. Paul for the first time recognized the tort of invasion of privacy, allowing lawsuits in Minnesota courts under three of the four theories for violation of that right.

The court decided that Elli Lake and Melissa Weber could sue Wal- Mart and its employees for invasion of privacy after copies of a photograph from a roll of film they brought to the store for developing began circulating in the community where they lived. The photograph depicted the two women taking a shower together.

A state trial court in Moorhead dismissed the suit, holding that the state Supreme Court had not recognized the right to sue for invasion of privacy. An appellate court in St. Paul affirmed the trial court’s decision, but the state Supreme Court concluded that the cause of action did exist and remanded the case for trial.

The court allowed Lake and Weber to sue under three of the four ‘traditional’ causes of action for invasion of privacy recognized in most states: intrusion, public disclosure of private facts, and appropriation of image or likeness. False light, the fourth cause of action, is not recognized in Minnesota because of its close resemblance to defamation and the danger false light actions pose to free speech, the court noted.

In an opinion written by Chief Justice Kathleen Blatz, the court held, “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.”

Writing for herself and another justice, Justice Esther Tomljanovich dissented. “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,” Tomljanovich wrote. “We should be even more reluctant now to recognize a new tort.” (Lake v. Wal-Mart Stores, Inc.; Counsel for Wal-Mart: Corenia Ann Kollasch, Fergus Falls)