There are now explicit data privacy provisions in the constitutions of at least ten states, including Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington. There is no explicit data privacy provision in the Minnesota State Constitution. Tort law. The tort of invasion of privacy has been identified and described in the Restatement (Second) of Torts § 652 (1977) (“Restatement”) and includes: 1) intrusion upon seclusion; 2) public disclosure of private facts; 3) appropriation of name or likeness; and 4) publicly placing a person in false light. Other torts and causes of action related to privacy may include defamation, assault and battery, trespass, breach of confidentiality, intentional infliction of emotional distress, negligence, and right of publicity. In a Minnesota case, Lake v. Wal-Mart Stores, Inc. 582 N.W.2d 231 (Minn. Sup. Ct. 1998), the Minnesota Supreme Court recognized a right to privacy in Minnesota, and adopted the Restatement definitions for three of the Restatement torts - intrusion upon seclusion, appropriation, and publication of private facts. [See also Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003) and the common law of privacy later in this Guide]. Contracts. Confidentiality agreements and related contracts may have specific provisions restricting the right to use or disclose information and are generally governed by state law. Terms of Use and Privacy Policies that appear on websites may also be enforceable. Business Associate agreements may be required under the Health Insurance Portability and Accountability Act (“HIPAA”). See discussion of Business Associate agreements later in this Guide. Commercial agreements now also include provisions on handling personal information and data security. Social media platforms such as Facebook have terms of use and privacy policies that include provisions regarding the sharing of personal information. [See Lathrop GPM and Minnesota Department of Employment and Economic Development publication A Legal Guide To the Use of Social Media in the Workplace July 2013 ]. 2
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