Minnesota recognizes three common-law invasion-of-privacy torts: intrusion upon seclusion, appropriation, and publication of private facts. In Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998), the Minnesota Supreme Court recognized those three but “decline[d] to recognize the tort of false light publicity at this time,” and that remains the law. The Court was concerned that false light claims are too similar to defamation and that, to the extent false light is more expansive than defamation, tension with the First Amendment is increased. No Minnesota appellate decision has since recognized false light.
You are subject to liability for publication of private facts when you give 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. Restatement (Second) of Torts § 652D. That is Minnesota law because the Supreme Court adopted § 652D in Lake, 582 N.W.2d at 235.
Elements
The controlling elements come from Restatement (Second) of Torts § 652D, which Minnesota adopted in Lake. You are subject to liability only if the matter publicized both would be highly offensive to a reasonable person and is not of legitimate concern to the public. Lake, 582 N.W.2d at 235.
Publicity
The threshold element is “publicity,” and it is more demanding than the “publication” element of defamation. In defamation, publication is a word of art that includes any communication to a single third person. Publicity, by contrast, means 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.” Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 557 (Minn. 2003) (adopting Restatement (Second) of Torts § 652D cmt. a). Communicating a private fact to a single person, or even to a small group, is not enough. Restatement (Second) of Torts § 652D cmt. a.
That distinction decides cases. In Bodah, faxing a list of 204 employees’ names and Social Security numbers to 16 terminal managers in six states did not constitute the requisite publicity. Bodah, 663 N.W.2d at 556-57. Disclosure to a limited, multi-state group of recipients still fell short of communication to the public.
What does satisfy publicity is public communication: any publication in a newspaper or magazine, even of small circulation, a handbill distributed to a large number of persons, a broadcast over the radio, or a statement made to a large audience. The distinction is between private and public communication. Tureen v. Equifax, Inc., 571 F.2d 411, 417 (8th Cir. 1978) (quoting Restatement (Second) of Torts § 652D cmt. a).
The publicity inquiry asks only about the breadth of the disclosure, not about how sensitive the facts are or how much harm they cause. The Minnesota Supreme Court reversed the court of appeals and rejected a broader multi-factor approach that would have weighed the nature of the private facts and the harm to the plaintiff alongside the breadth of disclosure. That approach, the Court held, “emasculates the distinction between public and private” and improperly blurs the publicity element with the tort’s other elements. Bodah, 663 N.W.2d at 553, 556-57 (reversing 649 N.W.2d 859 (Minn. App. 2002)). Because publicity can be resolved on the pleadings, the question is not always one for the jury: Bodah itself was decided on a motion to dismiss. If you do not clear the publicity threshold, the court does not reach the tort’s remaining elements. Bodah, 663 N.W.2d at 557.
Truth Is No Defense
Unlike defamation and false light, both of which require a false statement, publication of private facts concerns the disclosure of true private facts. Truth is therefore no defense to this tort: the harm is the public exposure of a genuinely private matter, not the spread of a falsehood. Truthfulness is not a separate element you must prove, and Lake does not list it as one. Restatement (Second) of Torts § 652D’s two liability criteria, (a) and (b), are that the matter publicized (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public. Lake, 582 N.W.2d at 235.
Highly Offensive
The matter publicized must be highly offensive to a reasonable person. The standard is objective: the question is not whether you personally found the disclosure offensive, but whether it would be highly offensive to a reasonable person of ordinary sensibilities. Note the qualifier. Minnesota’s element is “highly offensive,” not merely “offensive,” and the qualifier is part of the legal element. Lake, 582 N.W.2d at 235.
Offensiveness is only half the test. The matter must be both highly offensive to a reasonable person and not of legitimate concern to the public. A highly offensive disclosure is still not actionable if it is newsworthy or of legitimate public concern. Restatement (Second) of Torts § 652D, adopted in Lake, 582 N.W.2d at 235.
Defenses
Legitimate Public Concern (Newsworthiness)
If the matter published is of legitimate concern to the public, its publication is not actionable. This limitation is built into the tort itself: liability attaches only where the matter “is not of legitimate concern to the public.” Lake, 582 N.W.2d at 235 (adopting Restatement (Second) of Torts § 652D). Strictly, legitimate public concern is an element the plaintiff must overcome rather than a true affirmative defense, but in practice it defeats the claim wherever the information is newsworthy.
Courts read newsworthiness broadly. There is a legitimate public interest in nearly all recent events, as well as in the private lives of prominent figures such as actors, public officials, and professional athletes. The line between newsworthy and non-newsworthy matter is drawn by reference to the customs and conventions of the community, that is, community mores: the line falls where “the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake.” Virgil v. Time, Inc., 527 F.2d 1122, 1128-29 (9th Cir. 1975).
There is an important limit. Even where an area of activity is a matter of legitimate public interest, it does not follow that every private fact about a person who engages in it is newsworthy. Being a public figure, or engaging in a newsworthy activity, does not render every aspect of your life subject to public disclosure. Virgil, 527 F.2d at 1129.
One caution about authority. Minnesota’s newsworthiness limitation comes from Restatement (Second) of Torts § 652D as adopted in Lake, not from Virgil. Lake, 582 N.W.2d at 235. Virgil is a non-binding, out-of-circuit federal decision that Lake does not cite; it is at most a persuasive illustration of the same Restatement standard, not controlling Minnesota law.
Consent
If you consented to the disclosure of the private information, there is no violation. But consent is effective only “to the particular conduct, or to substantially the same conduct.” Restatement (Second) of Torts § 892A(2). Consent to a limited disclosure is not consent to broader publication, so a defendant cannot rely on your limited consent to defeat a public-disclosure claim.
