Invasion of privacy torts, like other torts in Minnesota, are subject to a strict statute of limitations that dictates when a claim can be brought.[1] When seeking relief under a claim for invasion of privacy, a claimant must immediately confront Minnesota’s vague limitation statutes, § 541.05 and § 541.07, which raises a potentially claim-killing question – is the statute of limitations for invasion of privacy torts six years or two years? The Minnesota Supreme Court has yet to answer this question, and the statutes present a well-known problem: both can be read to apply to most claims. Minn. Stat. § 541.05 subd. 1(5) prescribes a six-year limitation for “criminal conversation, or for any other injury to the person or rights of another . . . .” Conversely, Minn. Stat. § 541.07(1) prescribes a two-year limitation for “libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury” except where “section 541.05 . . . otherwise prescribes.” Although the question presents a close call, applying the Minnesota Supreme Court’s original analysis on the statutes of limitations, potential plaintiffs should arguably be given six years to bring their claim.
The Birth of Invasion of Privacy Torts
The invasion of privacy torts stem from the initial recognition of a legal right to privacy well over a century ago.[2] Since then, various states have formulated different invasion of privacy torts, ultimately crystallizing in four distinct torts: intrusion upon seclusion, appropriation, publication of private facts, and false light publicity.[3] Intrusion upon seclusion involves an intentional intrusion into someone’s private affairs.[4] Similarly, publication of private facts occurs when someone’s private affairs are publicized.[5] Appropriation differs somewhat, in that it creates liability for appropriating someone’s name or likeness to protect the exclusive use of one’s own identity.[6] Finally, false light publicity is essentially a broader form of defamation.[7]
The invasion of privacy torts provide an essential tool to protect an area at the “heart of our liberty” by giving individuals the right to choose which parts of their lives become public and which remain private.[8] More importantly, these torts help guard against, or at least attempt to remedy, the often serious harm caused by an invasion of privacy.
Minnesota’s Slow-Moving Approach to Invasion of Privacy Torts
A laggard among states, Minnesota did not recognize invasions of privacy torts until the 1998 case, Lake v. Wal-Mart Stores, Inc.[9] In Lake, a Wal-Mart employee printed and circulated a risqué photograph despite telling the plaintiffs that no copies were made.[10] The Minnesota Supreme Court, rightly recognizing that the “fundamental right to privacy” extends to “choosing which parts of our lives shall become public and which parts we shall hold close,” recognized the torts of intrusion upon seclusion, appropriation, and publication of private facts.[11] Unfortunately, we were left with the question of which statute of limitations applies to these new causes of action, § 541.05 or § 541.07?
Over a century before the Lake decision, the Minnesota Supreme Court addressed the application of the statutes of limitations in Brown v. Village of Heron Lake.[12] The Brown court held that the two-year statute only applies to torts more like those expressly enumerated in the two-year statute.[13] Still decades before Lake was decided, the Minnesota Supreme Court, in Wild v. Rarig, applied Brown’s “more-like” test to identify shared characteristics of two-year-limited torts:[14] (1) they are either intentional or strict liability torts; (2) they involve injury to the person, rather than property or contract claims; and (3) they can usually be the basis for criminal prosecution.[15] These characteristics should be understood as guidelines, not a strict rule or elements, as they were formulated based on the specific tort and facts of the Wild case.[16] More importantly, the Minnesota Supreme Court, in Ott v. Great Northern Ry. Co., warned against applying a single standard to every tort,[17] indicating that the Wild court, in elucidating generalized standards, may have dropped the ball in remembering where this conversation started.
The District of Minnesota’s Flawed Application
While neither the Minnesota Supreme Court nor Court of Appeals has squarely addressed which statute of limitation applies, federal courts in Minnesota have. Without guidance from a State Supreme Court, a Federal District Court’s job is to make its best guess at what the State Supreme Court would decide.[18] In this regard, the United States District Court for the District of Minnesota strikes out in its application of Minnesota law. In Manion v. Nagin and Hough v. Shakopee Public Schools, the courts only mentioned one of the three Wild characteristics – intentionality.[19] In Manion, the court’s analysis was limited to a single conclusory sentence: “Intrusion upon seclusion is also an intentional tort with a two-year stature of limitation.”[20] This is far from the “more-like” test demanded by Brown or the characteristics suggested by Wild. The Hough court did no better, merely citing to Manion and offering another single-sentence declaration.[21]
Statutes of Limitations and Invasion of Privacy Torts in Minnesota Today
The Wild characteristics were a useful tool to determine the statute of limitations in a specific case, but they remain only one fact-specific application of the “more-like” test. Given that Wild was decided before invasion of privacy torts were recognized in Minnesota,[22] and the Minnesota Supreme Court has cautioned against such an application,[23] applying the Wild standard to invasion of privacy torts is inappropriate. What, then, is the appropriate test? The Brown “more-like” test was and remains the correct analysis. We argue that Wild should be interpreted as a tool used to apply Brown.
The two-year statute applies to “libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury.”[24] Assault, battery, and false imprisonment all involve personal, physical injury. Libel and slander involve “material” injury[25] and falsity.[26] Invasion of privacy torts, on the other hand, involve an injury to a right, rather than material or personal injury. The closest analogy to the invasion of privacy torts in the two-year statute is undoubtedly to libel and slander; however, in the words of Justice Louis D. Brandeis, this is a “superficial resemblance.”[27] Invasion of privacy torts, unlike libel and slander, involve the exposure of truth, not falsity. In this respect, the “more-like” test would not categorize invasion of privacy torts into the two-year statute.
The six-year statute applies to “any other injury to the . . . rights of another . . . .”[28] In recognizing invasion of privacy torts, the Minnesota Supreme Court outlined how these torts and the right to privacy are inextricably linked.[29] Justice Brandeis also noted the unique nature of privacy rights, in that enforcing privacy rights does not depend on the nature of the resulting injuries.[30] This is because the injury caused by invasion of privacy is to the right of privacy itself.[31] Invasion of privacy torts are also like other torts enumerated in the six-year statute. Like trespass,[32] which involves an invasion into real estate, invasion of privacy torts are just that – an invasion into an individual’s privacy. The torts are also like criminal conversation, which is considered an invasion of privacy into one’s marriage.[33] While it would be the first such application, the six-year statute also expressly applies to injuries to rights of another.[34] This may place invasion of privacy, an injury to the privacy rights of another, squarely within the six-year statute. Based upon these characteristics, we argue that invasion of privacy torts are much more like those torts enumerated in the six-year statute. If the question remains a close call, the tie should go to the runner as discussed above: the two-year statute only applies to actions not covered by the six-year statute.[35]
The vague language of Minnesota’s statutes of limitations makes it difficult to apply them to new torts. However, guided by the Brown test, invasion of privacy torts are more like torts in the six-year statute, and may even be considered expressly enumerated in the statute. On balance, plaintiffs seeking to recover from these torts should enjoy a six-year statute of limitations. Regardless of which statute the Minnesota Supreme Court ends up applying to invasion of privacy torts, we will note that potential plaintiffs may also find some protection in Minnesota’s claim accrual rules and the principal of equitable tolling due to the furtive nature of these claims.
If you have experienced an invasion of your privacy and need help pursuing litigation, the experienced attorneys at Eckland & Blando can guide you through this challenging area of law.
[1] Research and drafting assistance provided by Robby Dube, associate at Eckland & Blando, and Adrian Kipp, law clerk at Eckland & Blando.
[2] Prior to 1890, no court had expressly recognized the right to privacy. The foundational article, The Right to Privacy by Warren and Brandeis, in 4 Harv. L. Rev. 193, articulated that the right was entitled to separate recognition. A general invasion of privacy tort was first recognized in Pavesich v. New England Life Ins. Co. See Restatement (Second) of Torts § 652A, comment a (1977); Pavesich v. New England Life Ins. Co., 50 S.E. 68, 73 (1905).
[3] Restatement (Second) of Torts § 652A(2), comment c (1977).
[4] Restatement (Second) of Torts § 652B (1977).
[5] Restatement (Second) of Torts § 652D (1977) (additionally, the publication must be “highly offensive to
a reasonable person” and “not of legitimate concern to the public.”).
[6] Restatement (Second) of Torts § 652C, comment a (1977).
[7] See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998).
[8] See id.
[9] Id. at 234. Post Lake, only North Dakota and Wyoming declined to recognize any invasion of privacy torts.
[10] Id. at 232-33.
[11] Id. at 234-35.
[12] Brown v. Village of Heron Lake, 67 Minn. 146 (1897).
[13] Id. at 147.
[14] Wild v. Rarig, 302 Minn. 419, 443-47 (1975).
[15] Christenson v. Argonaut Ins. Companies, 380 N.W.2d 515, 518 (Minn. Ct. App. 1986).
[16] See Wild, 302 Minn. at 442-47.
[17] In applying Brown, the Minnesota Supreme Court stated, “[i]t is not advisable to anticipate cases which may arise . . . .” Ott v. Great Northern Ry. Co., 70 Minn. 50, 55 (1897).
[18] See Brandenburg v. Allstate Ins. Co., 23 F.3d 1438, 1440 (8th Cir. 1994).
[19] Manion v. Nagin, No. CIV. 00-238 ADM/RLE, 2003 WL 21459680, *8 (D. Minn. June 20, 2003), aff’d, 392 F.3d 294 (8th Cir. 2004); Hough v. Shakopee Pub. Sch., 608 F. Supp. 2d 1087, 1118 (D. Minn. 2009).
[20] Manion, 2003 WL 21459680 at 8.
[21] “Under Minnesota law, the tort of intrusion upon seclusion is subject to the two-year statute of limitations for “tort[s] resulting in personal injury” . . . .” Hough, 608 F. Supp. 2d at 1118 (citing Manion, 2003 WL 21459680 at *8).
[22] Compare Wild v. Rarig, 302 Minn. 419 (1975) with Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998).
[23] See Ott, 70 Minn. at 55.
[24] Minn. Stat. § 541.07(1) (2021).
[25] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 197 (1890).
[26] Restatement (Second) of Torts § 558 (1977).
[27] Warren, supra note 25.
[28] Minn. Stat. § 541.05 subd. 1(5) (2021).
[29] Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998) (“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.”).
[30] See generally Warren, supra note 25 at 193-220.
[31] The first court in the United States to recognize invasion of privacy as a tort stated that “a violation of the right of privacy is a direct invasion of a legal right of the individual.” Pavesich, 50 S.E. at 73.
[32] Minn. Stat. § 541.05 subd. 1(3) (2021).
[33] Criminal Conversation Definition, Black’s Law Dictionary (11th ed. 2019) (quoting R.F.V. Heuston, Salmond on the Law of Torts 358 (17th ed. 1977).
[34] Minn. Stat. § 541.05(5) (2021).
[35] Minn. Stat. § 541.07 (2021).