Dear colleagues

And there is Coase's 1987 McCorkle lecture ('Blackmail' (1988) 74 Virginia Law Review 655) , which is not bad on the lawfulness of the blackmailing act coming from one who never made great pretence to legal knowledge.

Best wishes

Dave

David Campbell, BSC(Econ), LLM, PhD, FCI(Arb)
Professor of International Business Law

School of Law
Liberty Building
University of Leeds
LEEDS
LS2 9JT
UK

tel: [+44] (0) 113 343 7041
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________________________________
From: A.P. Simester [simester@nus.edu.sg]
Sent: 13 June 2013 09:44
To: Neil Foster; obligations@uwo.ca
Subject: RE: Intimidation as a tort


Interesting. This is a known problem, not only for obligations but for the criminal law too: (conditionally) threatening to do something lawful can itself be a crime of blackmail or a tort of intimidation, notwithstanding the lawfulness of the thing threatened. A nice discussion (and to my mind, at least, explanation!) is Grant Lamond's essay, "Coercion, Threats, and the Puzzle of Blackmail".

best
Andrew


________________________________
From: Neil Foster [Neil.Foster@newcastle.edu.au]
Sent: 13 June 2013 02:32
To: obligations@uwo.ca
Subject: ODG: Intimidation as a tort

Dear Colleagues;
The interesting decision in AS v Murray [2013] NSWSC 733 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=165288 is a (to my knowledge) rare recent example of the tort of intimidation being used. Indeed, it seems that the plaintiff had not actually pleaded the tort, but the judge seems to have found it for him! The facts were that Mr AS had joined an internet dating service but did not want this to be known to his wife and family. Murray was found to be the author of an email which threatened to reveal the details to Mr AS's family unless a large amount of money was handed over. Initially one payment was made but then, as perhaps is not uncommon, another amount was demanded a year later. Various techniques were used to track down the identity of Murray, who did not, however (though served) appear at the trial.
Ball J said:

"14 In my opinion... the defendant has committed the tort of intimidation. The essential elements of that tort were described by Denning MR in Morgan v Fry [1968] 2 QB 710 at 724 in these terms:
[T]here must be a threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes: and a person so threatened must comply with the demand rather than risk the threat being carried into execution. In such circumstance the person damnified by the compliance can sue for intimidation.

That passage was approved by Nagle J in Latham v Singleton [1981] 2 NSWLR 843 at 858."

Damages were awarded in terms of (1) a refund of the amount that had been paid initially, (2) exemplary damages of $20,000, and (3) indemnity costs.
The outcome seems reasonable, but I was not entirely convinced by the reasoning of the trial judge. His Honour pointed out that the defendant had breached the criminal law by making the demand, but he does not clearly identify what was "unlawful" about what the defendant was threatening to do in the first place. However, on consulting the excellent Street on Torts 13th ed at p 409 n 127 I see a suggestion that a threatened breach of an equitable obligation should be sufficient to constitute the tort- citing Dixon v Dixon [1904] 1 Ch 161. Here the information about the plaintiff's membership of the internet dating site had been obtained by "hacking" his computer, and this would, one would think, amount to an equitable "breach of confidence" under the present law on the topic (even in Australia, where it may only be unlawful to reveal such information if "highly embarrassing" or the like.) In fact, Ball J also issued an injunction against future use of the information based on these equitable grounds.
Thanks to Bill Madden who drew this case to my attention.

Regards
Neil


Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
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