it is defined as that which injures social
personality.” 17 A court that affirms the
viability of a privacy cause of action,
even when evidence of traditional,
quantifiable damage is not available,
accounts for intrinsic harm and allows
the right to be effectively enforced. This
also upholds valuable social norms and
advances “civility rules” 18 that make life
in society tolerable.
Toward a Meaningful Remedy
Minnesota has not yet expressly ad-
opted Section 652H of the Restatement,
including its approach to presuming
actual damages in privacy cases. 19 This
would be an appropriate step because
Minnesota courts rely on the Restate-
ment to define the substantive aspects of
the privacy torts Minnesota recognizes. 20
And several Minnesota cases have al-
ready referenced Section 652H in the
context of privacy claims. 21 In Wagner
v. Gallup, Inc., the United States Dis-
trict Court for the District of Minne-
sota, applying Minnesota law, referenced
Section 652H in allowing a plaintiff to
testify about mental distress damages in
an invasion-of-privacy claim involving
a former employer’s alleged appropria-
tion of plaintiff’s name and likeness on
a website. Similarly, in Montgomery v.
The Original Traveling Photo Booth Co.,
the Hennepin County District Court
referenced plaintiffs’ reliance on Section
652H in rejecting the defendant’s claim
that plaintiffs suffered no damages from
defendant’s Internet posting of inappro-
priate photos taken during a wedding.
Various jurisdictions outside Minnesota
also look to the Restatement and have
expressly adopted its damages provisions
with respect to privacy claims. 22
By adopting the Restatement’s ap-
proach to damages in privacy cases, Min-
nesota courts would do away with the
fallacy of damnum absque injuria, ratify
the principle of intrinsic actual harm,
and permit the jury—a body composed
of representatives of the community in
which the breach occurs—to assign a
value to that harm in light of all of the
circumstances in which it occurred.
Taking privacy seriously in this regard
would also help deter misconduct.
Litigation over privacy rights is likely
to increase. If these rights are to have
real meaning, the law must recognize
and contend with their unique features,
which include intangible harm. Many
privacy claims will not result in easily
quantifiable damage, as would a claim
for payment of hospital bills. The jury is
in the best position to assess the conduct
of all the parties, weigh their conflict-
ing views, and, ultimately, assign a value
to the harm incurred. The Restatement
expressly facilitates that approach by
allowing recovery for harm to privacy
interests, as well as for the various poten-
tial secondary effects that may flow from
a breach, which can also be substantial.
By ensuring a meaningful remedy ex-
ists for the violation of privacy rights,
Minnesota courts would appropriately
strengthen those rights. s
Robert W. Vaccaro is a
partner with Gaskins,
Bennett, Birrell, Schupp,
L.L.P. in Minneapolis. He
practices in the areas of
insurance coverage, and
civil rights law.
Copyright © 2014 by Robert W. Vaccaro.
1 Harry Kalven, Jr., “Privacy in
Tort Law—Were Warren and
Brandeis Wrong?” 31 Law &
Contemporary Problems 326, 327
2 Samuel D. Warren & Louis D.
Brandeis, “The Right to Privacy,”
4 Harv. L. Rev. 193, 207 (1890).
3 Restatement (Second) of Torts
4 Id. at §652D.
5 Id. at §652C.
6 Id. at §652E.
7 582 N. W.2d 231 (Minn. 1998).
8 Id. at 233, 236.
9 Minn. Stat. § 13.01 et seq.
10 Minn. Stat. §144.291 et seq.
11 Minn. Stat. §181.950 et seq.
12 The Lake decision notes that,
at the time of its issuance, only
Minnesota, North Dakota and
Wyoming had not yet recognized
any of the invasion of privacy
torts. 582 N.W.2d at 234.
13 Restatement (Second) of Torts
14 But see, Hill v. McKinley, 311
F.3d 899, 906-07 (8th Cir. 2002)
(affirming jury award for damages related to physical injuries
incurred by prisoner while struggling against restraint straps in
anger over privacy violation).
15 4 Harv. L. Rev. at 193.
16 Warren and Brandeis contended
that remedies for invasion of pri-
vacy are “suggested by those ad-
ministered in the law of defama-
tion[.]” “The Right to Privacy,”
4 Harv. L. Rev. at 219. These
include, but are not limited to,
“[a]n action of tort for damages
in all cases. Even in the absence
of special damages, substantial
compensation could be allowed
for injury to feelings as in the
action of slander and libel.” Id.
17 Robert C. Post, “The Social
Foundations of Privacy: Community and Self in the Common
Law Tort,” 77 Cal. L. Rev. 957,
964 (1989) (emphasis in original).
18 Id. at 963.
19 See, 4A Michael K. Steenson
& Peter B. Knapp, Minnesota
Practice Series: Jury Instruction
Guides—Civil, CIVJIG 72. 25
(5th ed. 2006).
20 E.g., Lake, 582 N. W.2d at 233;
Yath v. Fairview Clinics, N.P., 767
N. W.2d 34, 44-45 (Minn. App.
21 Yath, 767 N. W.2d at 44-45;
Wagner v. Gallup, Inc., ___ F.
Supp. 2d. ___, No. 12-1816,
2013 WL 6729429, 8 (D. Minn.
12/20/2013); Montgomery v. The
Original Traveling Photo Booth
Co., Case Nos. 27-CV-10-14354
& 14395, 2011 WL 6961110, 8
(Minn. Dist. Ct. 07/26/2011).
22 E.g., Preferred Nat’l Ins. Co. v.
Docusearch, Inc., 829 A.2d 1068,
1075 (N.H. 2003); Rohrbaugh
v. Wal-Mart Stores, Inc., 572
S.E.2d 881, 887 (W. Va. 2002)
(noting that “[a] majority of
courts addressing the issue have
adopted the Restatement’s position
on damages” and citing several
cases); Moore v. Big Picture Co.,
828 F.2d 270, 276 (5th Cir.
1987); Kish v. Iowa Central Cmty.
Coll., 142 F. Supp. 2d 1084, 1100
(N.D. Iowa 2001). Numerous
other reported and unreported
decisions exist on this issue.