Minnesota law recognizes four different privacy torts including appropriation, intrusion, public disclosure of private facts, and false light. Liability under public disclosure of private facts occurs when a person gives publicity to a matter that concerns the private life of another, a matter that would be highly offensive to a reasonable person and that is not of legitimate public concern. Restatement (Second) of Torts § 652D.
The first element to prove public disclosure of private facts requires 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.” Tureen v. Equifax, Inc. 571 F.2d 411, 417 (8th Cir. 1978). Unlike defamation, merely communicating something to a third party is not considered public publication for this tort. And, even if the facts are disseminated to more than one person it does not necessarily meet the threshold of being public disclosure. Publication to a few people can impose liability upon a defendant but this is always a fact question to be determined by a judge or a jury. In deciding if information has been publically disclosed the court will examine “the nature of the private facts and the harm to which the plaintiff is exposed as a result of the dissemination as well as the breadth of disclosure.” Bodah v. Lakeville Motor Express, Inc., 649 N.W.2d 859,865 (Minn. App. 2002). Interestingly, if the publicity element is not proven then the court does not go on to analyze the other elements to determine it here has been a public disclosure if private facts.
The tort of public disclosure of private facts requires that the disclosed information be true. Lake v. Wal-mart Stores, 582 N.W.2d 231,235 (Minn. 1998).
The disclosure of the private fact must offensive to a reasonable person. The question is not whether the plaintiff found the publication disclosure offensive but whether an ordinary person of like-mindedness would also find it offensive.
There are a few defenses available when faced against a public disclosure of private facts lawsuit. The first is, if there was a public benefit. If the public publication of the private information would be a valid concern to the public then it does not constitute a tort. Courts have generally held that there is a legitimate public interest in nearly all recent events as well as in the private lives of prominent figures such as movie stars, politicians, and professional athletes. In other words, courts have given a broad meaning to the word newsworthiness but have further explained that the line between newsworthy and non-newsworthy is based on customs and community standards. Virgil v. Time, Inc., 527 F.2d 1122, 1126 (9th Cir. 1975).
The next defense is consent if the plaintiff consent to the disclosure of the private information, then there is no violation of public disclosure of private facts.
There is also a defense of qualified privilege. If someone interjects themselves into a matter of public concern it may constitute an affirmative defense of qualified privilege.
Lastly, if the event took place public then it is not an invasion of privacy. Courts have held that a photograph taken in a public place does not constitute an invasion of privacy.