|From:||Donal Nolan <email@example.com>|
|To:||Robert Stevens <firstname.lastname@example.org>|
|Volokh, Eugene <VOLOKH@law.ucla.edu>|
|Date:||08/07/2022 09:52:04 UTC|
|Subject:||RE: Kinsey identifying dissident for Saudi government isn't negligent|
Although I broadly agree with Rob in terms of where this takes us (ie what I take it he thinks the law should be) surely the reasoning here is question-begging (see highlighted sections below). Presumably those Rob puts in the Donoghue/MacPherson camp think that there are two wrongs in some cases of this kind even though there was no assumption of responsibility, and it is not self-evident (to me anyway) why that is not the case. So it needs to be explained, not just asserted. Nor do the rules on attribution provide the answer, as on the Donoghue/MacPherson view the wrong of the criminal is not being attributed to the defendant. The defendant has committed an independent wrong.
One other point on the speech examples is that we shouldn’t lose sight of the breach requirement. Is it unreasonable conduct to tell your partner you’ve been raped? How could that possibly be so? In which case the duty question loses much of its practical force. I’m not saying that we should deal with these cases by breach, I just think we shouldn’t lose sight of it.
There are two different ways of looking at cases of facilitating or inducing the wrongdoing of others.
This case is analogous to the liability of social hosts for the drunk driving of those they’ve plied with drink (which we discussed many years ago see Childs v Desormeaux https://www.stevehedley.com/odg/admin/2006.htm ) or gun sellers to those they can foresee will attack others.
One approach, probably the dominant academic one, is to focus on the defendant and apply the general Donoghue v Stevenson/MacPherson v Buick Motor Co. Did the defendant, by his negligent action, reasonably foreseeably cause the plaintiff injury? Yes. End of story.
Another is to ask what wrong did the plaintiff suffer? Answer: they were run over by a drunk driver [social host], the were shot [gun seller], they suffered assassination attempts/ the torture of family and friends [Abdulaziz v. McKinsey].
We have rules for attributing the [wrongful] actions of one person to another. They’re more often studied in the criminal law, but they’re no less applicable in the law of torts, although virtually undiscussed there (see R Stevens, Torts and Rights ch 11).
If D1 procures, authorizes or ratifies D2’s actions, or conspires with D2 to do an action, D2’s [wrongful] action will be attributed to D1.
But if D1 merely facilitates D2’s actions (as where, back in the day, a tape recorder manufacturer did, who knew it would be used to record copyrighted music), that is insufficient to attribute D2’s actions to D1.
Social hosts, gun sellers, and the defendants here are all in the facilitation category. Is that enough to hold them liable for the wrongdoing of others? No. Was the action that constituted the wrong the doing of the defendant?
It may be that a plaintiff suffers more than one wrong (eg I may have assumed responsibility to protect you from the wrongdoing of others, so that when such wrongdoing occurs the wrong I commit is not the same as theirs, but rather my own breach of my undertaking). But that doesn’t apply here.
For myself, I wouldn’t put any significance on the fact that this is a speech case.
[For those who care, my own view isn’t the same as it was in 2006 when we discussed Childs.]