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Minnesota was one of the last states to recognize a legal claim of invasion of privacy in the landmark opinion of Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998).  The case involved employees in a discount store’s photo lab who circulated within the community nude vacation photos on a roll of film brought in for development.  Following longstanding common law recognized in nearly every other state, the Minnesota Supreme Court in 1998 recognized the tort of invasion of privacy based on “publication of private facts.”  Similar to the law of defamation, the “publication” element requires the embarrassing information be disseminated to a sufficiently wide audience.  As clarified in a subsequent case, 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).

Fast forward to 2017, and what has changed?  Photo labs basically no longer exist, but social media does.  The issue for decision in Jane Doe v. K-Mart Corporation, A16-0465 (Minn. Ct. App. Feb. 6, 2017) involved the intersection of social media and privacy law.  Similar to Wal-MartK-Mart involved sexual material, specifically an estranged husband’s secret Viagra® prescription which a K-mart pharmacy employee disclosed to his estranged wife.  Who used the information on a social media rampage against her estranged husband and his paramour.  (Among other things, referring to the latter as “Skankerella” and “Skankenstein,” and announcing that the former, her ex-, was “building a big new house to make up for obvious inadequacies elsewhere”).  In dismissing the case, the court ruled that providing the information, no matter how embarrassing, to just one individual falls short of “publication,” requiring dismissal of the case.  The improper recipient’s subsequent disclosure to a wider audience, even planet-wide via the internet, is immaterial to the legal analysis.  Finally, based on prior Minnesota Supreme Court precedent, the court rejected the plaintiffs’ invitation to recognize the “particular public” standard recognized in a minority of other states, whereby a smaller audience will suffice depending on the circumstances, such as living in a small town.

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