From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
To: Volokh, Eugene <VOLOKH@law.ucla.edu>
Neil Foster <neil.foster@newcastle.edu.au>
obligations@uwo.ca
Date: 08/07/2022 07:46:48 UTC
Subject: Re: Kinsey identifying dissident for Saudi government isn't negligent

I agree there''s also a big speech element here. Truth often hurts, and more to the point must be allowed in law to hurt. Andrew

On 08/07/2022 01:20, Volokh, Eugene wrote:

I agree, but I think the concern may go beyond that.  Say I tell a man that his wife is cheating on him, and he foreseeably attacks her (or her lover).  Would I be liable for negligence?

 

Or say that a woman tells her boyfriend that someone had raped her (or otherwise mistreated her), and he foreseeably attacks the attacker.  Would she be liable for negligence?

 

Eugene

 

 

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: Thursday, July 7, 2022 2:29 AM
To: Neil Foster <neil.foster@newcastle.edu.au>; Volokh, Eugene <VOLOKH@law.ucla.edu>; obligations@uwo.ca
Subject: Re: Kinsey identifying dissident for Saudi government isn't negligent

 

I remain a bit worried. I'm not sure about a duty to steer clear of dealing with, or providing services to, dodgy governments. Would / should a purveyor of arms to the Saudis face possible liability to a hapless Yemeni citizen in Sana'a?

Andrew

On 07/07/2022 01:36, Neil Foster wrote:

Dear Eugene;

This is a fascinating question- I may use it in teaching duty of care this semester! Under the current Australian approach to duty of care, there is a principle that still seems to be relevant which was referred to by McHugh J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1:

 

Ordinarily, people owe a duty of care to other persons when they know or ought reasonably to foresee that their conduct may cause physical damage to those persons or their property. Reasonable foreseeability of physical harm is generally enough to impose a duty of care on a person who knows or ought reasonably foresee that physical harm is a likely result of his or her conduct. (at 36-37)

 

A rough simplification of the law would seem to be: if you cause personal bodily injury to someone which you could have foreseen as a real possibility beforehand, then you will probably be liable for negligence unless

•          You were authorized to do so by some statute ;

•          The harm you caused resulted from a failure to do something (an omission [non-feasance] rather than a commission [misfeasance]);

•          The harm was caused by the actions of some other responsible actor whom you failed to control;

•          Holding you liable would cut across principles of liability in some other well-established area of liability.

 

These “policy” reasons for denying a duty do not seem to be present here, in that as you say it is not alleged that McKinsey failed to control the Saudis, simply that they revealed information which foreseeably led to a Saudi reaction. At least this would possibly apply to any direct physical harm caused to Mr Abdulaziz. However, there may be some other over-riding principles at stake- perhaps free speech? But that is not strongly protected in Australia. We do have a decision in Australia that even the common law doctrine of “act of state” (courts will not usually pass judgment on the actions of foreign governments) does not provide an immunity from suit where acts of torture are alleged: Habib v Commonwealth of Australia [2010] FCAFC 12 (25 February 2010) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2010/12.html . So an argument could be made.

Regards

Neil

 

 

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From: Eugene Volokh <VOLOKH@law.ucla.edu>
Date: Thursday, 7 July 2022 at 3:57 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Kinsey identifying dissident for Saudi government isn't negligent

 

So the Second Circuit held yesterday in Abdulaziz v. McKinsey & Co., Inc., https://www.courthousenews.com/wp-content/uploads/2022/07/abdulaziz-mckinsey-ca2.pdf, concluding that McKinsey as a matter of law lacked a duty of care under New York law, largely on the grounds that “[g]enerally, there is no ‘duty to control the conduct of third persons to prevent them from causing injury to others.’”  (“Abdulaziz pled that, after receiving the report, the Saudi government responded by targeting him with assassination attempts and arrested, tortured, and harassed his family members and friends currently living in Saudi Arabia.”)

 

But I wonder whether this is quite right:  Plaintiff was suing McKinsey not for its failure to control the Saudi government, but for its own actions in providing information to the Saudi government that allegedly helped cause the injury to him.  The court deals with this by saying,

 

Other than the foreseeability of risk, Abdulaziz provides no reason why sharing the report was itself a breach of a cognizable duty of care running from McKinsey to Abdulaziz, and he fails to distinguish such a putative duty from similar ones rejected by New York courts. See Valeriano v. Rome Sentinel Co., 842 N.Y.S.2d 805, 806 (4th Dep’t 2007) (no duty not to publish another’s personal information absent a “statutory, contractual or fiduciary duty to protect the confidentiality of plaintiff’s personal information”). Thus, even if McKinsey knew or should have known that the Saudi government would target Abdulaziz after learning of his dissident activity from the report, Abdulaziz has not plausibly alleged a breach of a duty of care cognizable under New York law.

 

But Valeriano dealt only with the alleged harm of publishing personal information as such (New York doesn’t generally recognize privacy torts); here, the claim is of harm stemming from the alleged assassination attempts and physical injury to family members and friends – perhaps not recoverable under another theory, but not quite the same as Valeriano, I think.

 

My question:  If I give someone a gun, when I should have known that he was likely to use it for criminal purposes, I’d be guilty of negligence, under a negligent entrustment, theory.  If I give someone information, when I should have known that he was likely to use it for criminal purposes, wouldn’t this likewise be a presumptively valid negligence claim, though with a possible First Amendment defense, or a possible no-duty rule stemming from the special status of information, and not from a “no duty to control third parties” theory?  Or am I analyzing the case incorrectly?  Thanks,

 

Eugene Volokh

UCLA School of Law

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Andrew Tettenborn
Professor of Commercial Law, Swansea University

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School of Law, University of Swansea
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Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute for International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855



Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855




ISTL

See us on Twitter: @swansea_dst
Read the IISTL Blog: iistl.wordpress.com
My publications can be found here and here and here
Member of the Heterodox Academy and member and adviser of the Free Speech Union



Disclaimer: This email (including any attachments) is for the use of the intended recipient only and may contain confidential information and/or copyright material. If you are not the intended recipient, please notify the sender immediately and delete this email and all copies from your system. Any unauthorized use, disclosure, reproduction, copying, distribution, or other form of unauthorized dissemination of the contents is expressly prohibited.