Lake v. Wal-Mart Stores, Inc. gets cited in Minnesota for the proposition that this state has an invasion-of-privacy tort. That’s true. It’s also close to the only thing the case decided.
The supreme court expressly reserved the merits. It was reviewing a dismissal on the pleadings. It said in so many words that it was recognizing the torts “without consideration of the merits of Lake and Weber’s claims,” and it didn’t define a single element beyond quoting the Restatement. 582 N.W.2d 231, 235 (Minn. 1998). Everything a plaintiff actually has to prove came later. And the two decisions that supplied it both narrowed the tort instead of widening it.
So the practical result is the opposite of the case’s reputation. Of the three branches Lake created, the one that fit its own facts most naturally — publication of private facts — is now the hardest of the three to plead in Minnesota.
What were the facts of Lake v. Wal-Mart?
A vacation photograph, a one-hour photo lab, and a small town. The court’s own telling: Elli Lake, then 19, and Melissa Weber, then 20, 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.” 582 N.W.2d at 232. They brought five rolls of film to the Wal-Mart store and photo lab in Dilworth, Minnesota. “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.’” Id. at 233.
Months later an acquaintance hinted at the photograph and questioned their sexual orientation. In December 1995 a friend told them a Wal-Mart employee had shown her a copy. By February 1996 Lake was told copies were circulating in the community. Id. They sued Wal-Mart and unidentified employees, pleading all four traditional privacy torts.
How the case got to the court matters as much as the facts. Wal-Mart moved to dismiss under Minn. R. Civ. P. 12.02 for failure to state a claim. The district court granted it, “explaining that Minnesota has not recognized any of the four invasion of privacy torts,” and the court of appeals affirmed. Id. Nothing had been tested. No discovery, no record, no finding that anything alleged was true.
Which privacy torts does Minnesota recognize?
Three: intrusion upon seclusion, appropriation, and publication of private facts. The court laid out all four Restatement formulations before picking among them. Intrusion upon seclusion occurs when one intentionally intrudes “upon the solitude or seclusion of another or his private affairs or concerns” in a manner “highly offensive to a reasonable person.” Appropriation “protects an individual’s identity and is committed when one ‘appropriates to his own use or benefit the name or likeness of another.’” Publication of private facts occurs when one “gives publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” 582 N.W.2d at 233 (quoting Restatement (Second) of Torts §§ 652B, 652C, 652D).
Two things about how the court got there are worth keeping.
It called Minnesota an outlier: “Only Minnesota, North Dakota, and Wyoming have not yet recognized any of the four privacy torts.” Id. at 234. This wasn’t a court breaking new national ground. It was a court catching up.
And it rejected the argument that this was the legislature’s job — “we reject the proposition that only the legislature may establish new causes of action” — holding that “it is within the province of the judiciary to establish privacy torts in this jurisdiction.” Id. at 235. That’s why the privacy torts are still common-law claims in Minnesota, not statutory ones, and why they carry no statutory damages, no fee-shifting, and no per-violation multiplier. Compare the statutes that do carry those remedies.
It wasn’t unanimous. Justice Tomljanovich, joined by Justice Stringer, dissented: “I would not recognize a cause of action for intrusion upon seclusion, appropriation or publication of private facts,” id. at 236, closing with “[i]n the absence of a constitutional basis, I would leave to the legislature the decision to create a new tort for invasion of privacy,” id. at 237.
Why did the court refuse false light publicity?
Because it overlaps defamation without carrying defamation’s safeguards. People often describe the court’s ruling on this count as a deferral, because it wrote “at this time” — but procedurally it was a disposition. The supreme court affirmed the dismissal of the false-light count. Id. at 232.
The reasoning was First Amendment reasoning borrowed from the Texas Supreme Court. Defamation, the court noted, “requires a false statement communicated to a third party that tends to harm a plaintiff’s reputation,” while false light “requires publicity, to a large number of people, of a falsity that places the plaintiff in a light that a reasonable person would find highly offensive.” Id. at 235. What separates them is the interest protected: “The primary difference between defamation and false light is that defamation addresses harm to reputation in the external world, while false light protects harm to one’s inner self.” Id.
Defamation in Minnesota has picked up privileges, retraction rules, and fault requirements that limit it. False light had none of those. Recognizing it would have created a claim reaching non-defamatory falsehoods with fewer defenses attached, and the court decided the small slice of speech that would newly become actionable wasn’t worth the chilling effect.
For a Minnesota plaintiff, the translation is blunt. If the objectionable statement is false, the claim is defamation and it has to satisfy defamation’s requirements. Repackaging it as a privacy claim doesn’t work here. Where the false statement comes out of a termination and the plaintiff was forced to repeat it, see self-publication defamation.
What does “publicity” require after Bodah?
Communication to the public at large — or to so many people that public knowledge is substantially certain. Nothing less counts, and “less” includes disclosures most people would call serious.
Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003), took up the element Lake had left undefined. A trucking company’s safety director faxed a five-page list of 204 employees’ names and Social Security numbers to the terminal managers of 16 freight terminals across six states. Employees sued as a class for publication of private facts.
The supreme court held the complaint failed as a matter of law. It rejected the court of appeals’ hybrid test, which had asked whether the disclosure “unreasonably expose[d]” the plaintiffs to a significant risk of loss. It also rejected the “special relationship” or “particular public” approach some states use to let a disclosure to co-workers or family qualify. Id. at 556–57. Instead: “We decide, instead, to adopt the Restatement definition of ‘publicity.’ We conclude, therefore, that ‘publicity’ means that ‘the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.’” Id. at 557 (quoting Restatement (Second) of Torts § 652D cmt. a).
The court said plainly why it drew the line so far out: “We understand the tort of publication of private facts to focus on a very narrow gap in tort law — to provide a remedy for the truthful but damaging dissemination of private facts, which is nonactionable under defamation rules.” Id.
Sit with that for a second. Sending 204 people’s Social Security numbers to 16 businesses in six states isn’t publicity in Minnesota. A data-loss event that would trigger obligations under the breach notification statute will very often fail this tort’s threshold element. That’s what I meant up top: Lake’s most intuitive branch is now its narrowest.
Does posting something online count as publicity?
Yes — on the face of the Court of Appeals’ holding, and it doesn’t matter how many people actually saw it. In Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009), information taken from a patient’s medical file showed up on a MySpace page that was publicly accessible for at least 24 hours and listed six “friends.” The district court found no publicity because too few people had seen it.
The Court of Appeals disagreed. It read Bodah as giving two independent routes to publicity: a single communication to the public, or communication to enough individuals that the information is deemed public. A public webpage is the first kind. “We hold that the publicity element of an invasion-of-privacy claim is satisfied when private information is posted on a publicly accessible Internet website.” Id. at 44. The court compared it to a small-circulation newspaper or a late-night radio broadcast, and to the Restatement’s shop-window poster.
Two cautions before you lean on it. The claim still lost. The Court of Appeals affirmed summary judgment on the invasion-of-privacy count on the alternative ground that no remaining defendant was shown to have created or sustained the page. And a concurring judge would have decided the case on the second route only, objecting that the majority’s rule “treats all Internet sites alike” when much internet communication is private in character. Id. at 52 (Johnson, J., concurring). A password-protected page, a closed group, or a direct message isn’t obviously covered.
What are the elements of intrusion upon seclusion?
Three, and the middle one does most of the work. The Court of Appeals stated them in Swarthout v. Mutual Service Life Insurance Co., 632 N.W.2d 741 (Minn. Ct. App. 2001): “The tort has three elements: (a) an intrusion; (b) that is highly offensive; and (c) into some matter in which a person has a legitimate expectation of privacy.” Id. at 744–45.
Swarthout also shows where the line sits. An insurer altered a medical-records release the applicant had signed, used the altered release to get records from a doctor and a clinic he hadn’t authorized, and posted the results to an industry database available to subscribing insurers. The district court granted summary judgment, reasoning that disclosing a blood-pressure prescription wasn’t highly offensive. Reversed: viewing the record favorably to the plaintiff, the court couldn’t say as a matter of law that “the altering of Swarthout’s release and the illicit obtaining, conveying, and publicizing of his private medical information” failed the test. Id. at 745.
Look at the shape of that. Intrusion has no publicity element at all. It’s the branch that reaches a hidden camera, a rifled file, or a records grab, where nothing was ever broadcast. For the recording-specific statutes that may run alongside it, see Minnesota’s surveillance and recording consent rules, and for records taken from a clinic, medical records and privacy in Minnesota.
How long do you have to sue?
Assume two years, and don’t litigate the question if you can avoid it. Minnesota has no limitations statute that names the privacy torts, and the two candidates point different directions.
Section 541.07(1) sets two years for “libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury” (the clause then goes on to veterinary malpractice). Section 541.05, subd. 1(5), sets six years for “criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated”. An invasion-of-privacy claim can be characterized either way — a tort resulting in personal injury, or an injury to the “rights of another” not otherwise enumerated. Which one controls isn’t something to settle from an article. It should be resolved against the specific claim, and the safe assumption is the shorter period. A claim filed inside two years never has to win that argument.
If the defendant is a government entity, the analysis changes completely: chapter 13 supplies its own remedy and its own rules, covered in Minnesota’s three privacy regimes.
Madgett Law, LLC handles Minnesota privacy claims — private facts disclosed by an employer, medical or personnel information obtained or circulated without authorization, hidden recording, and misuse of a name or likeness — along with the defamation claims that often travel with them. If information about you was taken or spread and you’re trying to figure out whether it’s actionable, send us a message or call 612-470-6529.
Sources: Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998), at 232 (procedural posture; Rule 12.02 dismissal affirmed by the court of appeals; “We reverse as to the claims of intrusion upon seclusion, appropriation, and publication of private facts, but affirm as to false light publicity”; the Mexico vacation photograph), 233 (the Dilworth photo lab and the “nature” notice; circulation in the community; the four Restatement formulations, quoting Restatement (Second) of Torts §§ 652B, 652C, 652D, 652E), 234 (“Only Minnesota, North Dakota, and Wyoming have not yet recognized any of the four privacy torts”), 235 (rejection of the proposition that only the legislature may create causes of action; “Today we join the majority of jurisdictions and recognize the tort of invasion of privacy”; “without consideration of the merits of Lake and Weber’s claims”; refusal of false light and the defamation comparison), 236 (holding sentence; Tomljanovich, J., dissenting: “I would not recognize a cause of action for intrusion upon seclusion, appropriation or publication of private facts”), and 237 (dissent’s conclusion; Stringer, J., joining) — Caselaw Access Project archive, static.case.law. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003), at 551–52 (facsimile of 204 names and Social Security numbers to 16 terminal managers in six states), 556–57 (rejecting the court of appeals’ hybrid test and the “special relationship” approach), and 557 (adopting the Restatement § 652D cmt. a definition of “publicity”; the “very narrow gap in tort law” description) — same source. Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009), at 41–44 (two methods of proving publicity; internet posting as publicity per se; “We hold that the publicity element of an invasion-of-privacy claim is satisfied when private information is posted on a publicly accessible Internet website”), 45 (alternative ground: no evidence any remaining defendant created or sustained the webpage), and 52 (Johnson, J., concurring, objecting that the majority’s holding “treats all Internet sites alike”) — same source. Swarthout v. Mutual Service Life Insurance Co., 632 N.W.2d 741 (Minn. Ct. App. 2001), at 744–45 (three elements of intrusion upon seclusion) and 745 (reversal of summary judgment on the altered-release facts) — same source. Minn. Stat. § 541.05, subd. 1(5) (six years for “criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated”) and § 541.07(1) (two years for “libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury”), 2025 Minnesota Statutes, Minnesota Office of the Revisor of Statutes. Minn. R. Civ. P. 12.02 is referenced as the procedural vehicle described in Lake itself, not quoted.
A note on the limitations question: no Minnesota appellate decision resolving which of §§ 541.05 and 541.07 governs a common-law invasion-of-privacy claim was located and read in preparing this article. The article therefore states the tension rather than an answer.
This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Whether a particular disclosure is actionable depends on facts this article cannot know, including who disclosed what, to whom, and when. No outcome is promised or implied.