In the age of the internet and sharing social media it has become a growing concern that some people will take a photograph or video of another and then post it online. Does posting the picture or video violate the subject’s privacy?
The first question to ask in determining if there has been a violation of the law is to determine if there is an expectation of privacy.
As a general rule, if you are on public property such as a street, sidewalk, city park, etc., there is no expectation of privacy and if you see someone who is drunk, getting arrested, or brawling, you are free to take photographs of what you see.
However, just because it is a “public” place, does not mean that no expectation of privacy exits. Stalls in public bathrooms, changing rooms, etc., are places where people would have an expectation of privacy even though they are outside of their home and at a public establishment.
It is a little trickier to determine if someone has an expectation of privacy when you are at someone’s private home or at a private event. If there are no rules or regulations about photographs and everyone at the venue or in the home has their phones out and are taking pictures, it would be hard to argue that anyone present would have an expectation of privacy.
Some private events have very strict rules allowing no cameras or photography (e.g., some of the Oscar after-parties have these restrictions). Someone attending that party would have an expectation of privacy.
What If a Picture is Taken of Me When I Had an Expectation of Privacy and Posted Online?
If a picture or photograph is taken of you when you had an expectation of privacy, you could bring an action for “invasion of privacy.” Minnesota recognizes three of the four types of invasion of privacy claims:
- Intrusion upon seclusion,
- Appropriation, and
- Publication of privacy facts.
Minnesota has declined to recognize false light publicity, the fourth type of invasion of privacy, stating that its damages are covered in civil defamation cases.
The claim for invasion of privacy was not recognized in Minnesota until the case of Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). Justice Blatz stated, “[t]he 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 the country.”
Even though it has been 17 years since the Lake case, there is not much guidance on what damages can be recovered. The Restatement (Second) of Torts §652H states,
One who established a cause of action for invasion of privacy is entitled to recover damages for (a) the harm to his interest in privacy resulting from the invasion; (b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.
Minnesota has not adopted this section. However, there is nothing to suggest that the court would not consider the intrinsic value of one’s privacy and note that economic damages will not always be suffered.