Invasion of Privacy: What are Your Damages

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In the age of society’s obsession with sharing everything in blog posts, Facebook comments, and 140 character tweets right to privacy still remains an ingrained part of America’s consciousness. The public’s outrage over the NSA scandal is evidence of this. But, what are your damages for an invasion of your privacy? It is fairly rare that an invasion of privacy would result in economic loss and even less likely that it would result in physical harm. Which begs the question, how do you quantify a feeling of being violated?

The Restatement (Second) of Torts (1977) identifies four different types of the tort of invasion of privacy, (1) intrusion upon seclusion, (2) publicity given to private life, (3) appropriation of name or likeness, and (4) publicity placing a person in false light.

Until 1998, Minnesota and two other states, North Dakota and Wyoming, had never recognized a right to privacy under Minnesota law. The case of Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998) changed privacy law in Minnesota when the Minnesota Supreme Court acknowledged, for the first time, a cause of action for intrusion upon seclusion. 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.” However, in the 16 years since Lake, there is still not a lot of guidance regarding what appropriate damages for intrusion upon seclusion are.

The Restatement (Second) of Torts, which the Supreme Court relied on when deciding Lake, states in Section 652H:

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.

Although Minnesota courts have not formally adopted Section 652H in determining damages, there is nothing to suggest that its framework would be denied if asserted. The courts will most likely recognize the intrinsic value in protecting one’s privacy, even if no economic or physical harm was incurred. Highlighting the absence of economic or physical harm to an intrusion upon seclusion case makes a great defense for the time being, but it is just a matter of time until Minnesota courts adopt guidelines to allow aggrieved persons an opportunity to enforce the law in Lake.