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The Liability of Internet Intermediaries The Liability of Internet Intermediaries

Contents

The Liability of Internet Intermediaries The Liability of Internet Intermediaries
1

Primary and secondary liability 5.05

1.1

Primary liability 5.06

1.2

Secondary liability 5.08

1.3

The nature of liability 5.15

2

Joint liability in tort 5.16

2.1

Procurers 5.20

2.2

Participants in a common design 5.33

2.3

Authorisers 5.71

3

Secondary liability in equity 5.72

4

Criminal accessory liability 5.77

5.01 This chapter introduces the principles that apply to determine when a person will be jointly liable for wrongdoing carried out by another. English law recognises several ways in which one person can be made liable for the acts or omissions of another. Together, these doctrines are referred to as secondary liability rules and their perpetrators are described as joint wrongdoers. What unites them is a requirement of at least prima facie wrongdoing by one or more third parties, the primary wrongdoers.

5.02 Doctrines of secondary liability accept that, in some cases, legal responsibility should attach to one person (‘A’) which is at least partly conditioned upon conduct by a third party (‘B’) that causes harm to a stranger (‘C’). The circumstances that justify holding A liable for B’s conduct are various; they depend on a combination of A’s causative relationship to harm and mental state, the nature of A’s relationship with B, and extraneous considerations of fairness and policy. Liability rules with this basic structure find expression in many areas of private law, though their nature and theoretical foundations are poorly understood.

5.03 These principles are important to internet intermediaries because such parties assist and enable a wide sphere of wrongful conduct by primary wrongdoers without necessarily engaging in that conduct themselves. This chapter principally discusses the operation of secondary liability rules in tort and equity. A brief overview of criminal accessory liability follows. These doctrines have separate institutional and remedial histories and cannot be usefully generalised. However, they reflect a shared policy of holding secondary wrongdoers accountable for harms also caused by third parties when they have a normatively and causally significant relationship with primary wrongdoing, typically constituted by an assumption of responsibility for the primary wrongdoer’s actions.

5.04 Doctrines of secondary liability set outer limits on the outer margins of tortious responsibility for primary wrongs perpetrated by others. Their operation begins at the penumbra of primary wrongs and ends at the limits of the four connecting factors identified in this chapter: procurement, common design, common law authorisation, and dishonest assistance in equity. They operate as limited exceptions to the general principle that a claimant’s rights extend only to those who have done him wrong. Although they developed in different institutional and doctrinal settings, these connecting factors are united by the common principle that a secondary wrongdoer may be made to answer for the wrongs of others where he has by his own conduct assumed responsibility for the primary wrongdoing.

5.05 Secondary liability is an ‘obscure and under-theorised’ part of private law.1 Much of the confusion that has bedevilled this area stems from the use of undefined, inconsistent, or misleading terminology. This chapter therefore begins by clarifying what is meant by ‘primary’ and ‘secondary’ liability, and indeed ‘liability’ itself.

5.06  Definition of primary wrongdoing. A distinction lies between two ways in which the law classifies wrongdoing. First, a person may engage in tortious activity by his or her own acts or omissions. Such conduct is intended and directed by that person, who carries it out personally. This type of wrong is described as ‘primary wrongdoing’ and its originating agent is subject to primary liability as a wrongdoer or tortfeasor. The consequences of such conduct are, in a factual sense, caused by the person who engages in it: there is strict identity between actor and acts.

5.07 Many breaches of duties involving third parties are properly classified as primary wrongs; consider, for example, the secondary actor’s failure to prevent harm to the claimant which was ‘very likely’ to occur in Dorset Yacht Co Ltd v Home Office.2 A person may also be primarily liable in negligence for injury caused by something or someone he has a duty to control,3 or for a related but distinct primary wrong.

5.08  Definition of secondary wrongdoing. Primary wrongdoing should be distinguished from secondary wrongdoing: acts or omissions by A, the secondary actor, which (1) are not independently a primary wrong, but either: (2) cause B, a primary wrongdoer, to engage in primary wrongdoing against C in a recognised way (‘causative secondary wrongdoing’); or (3) establish a recognised relationship between A and B within the scope of which B engages in primary wrongdoing against C (‘relational secondary wrongdoing’). Secondary wrongdoing can be preparatory—in the sense of supplying the means or preconditions for primary wrongdoing, or constituting the necessary relationship—or adoptive of prior wrongdoing. Even if causative, it must fall within a recognised category; for example, inducing or persuading B to commit a tort is secondary wrongdoing, but merely supplying assistance to B in carrying it out is not.4

5.09 In OBG Ltd v Allan, Lord Hoffmann defined secondary liability as ‘principles of liability for the act of another’.5 Lord Nicholls described it as ‘civil liability which is secondary in the sense that it is secondary, or supplemental, to that of the third party who committed [the primary tort]’.6 A more precise definition may be that secondary liability is liability having as one of its conditions a finding of at least prima facie wrongdoing by a third party. For example, liability for authorising copyright infringement requires proof of actual infringement by the party so authorised. By contrast, liability for breaching a contract is primary, as it does not matter whether any third party has also breached it.

5.10  Relationship with primary liability. Confusingly, secondary wrongdoing often leads to primary liability. Whether this is so is a question of interpreting the scope of the primary wrong. For example, section 60(2) of the Patents Act 1977 (UK) creates a statutory tort of contributory infringement which targets secondary wrongdoing but does not always require primary infringement, and is therefore an example of primary liability.7 Similarly, unlawful means conspiracy is primary not secondary liability, since its gist is concurrence and not primary wrongdoing.8 Secondary liability is thus closely related to the definition of a primary wrong, whose boundaries can be adjusted to encompass a wider or narrower range of conduct within it.

5.11 The doctrines of secondary liability examined in this chapter determine the threshold at which an internet intermediary will become legally responsible even though it does not independently satisfy the definition of the primary wrong. There is little to unite these disparate instances, except that they express common patterns of attribution in private law and reflect shared policies about the proper limits of personal responsibility.

5.12  Terminology. The term secondary9 is here used for three reasons: first, to mirror accepted judicial practice;10 second, to avoid ‘unhelpful’ and ‘mistake[n]’ comparisons with criminal accessory liability and the vicarious liability of employers, which carry their own conceptual burdens;11 and third, to select a neutral label which does not assume any particular model of non-primary responsibility (such as contributory or indirect tortfeasance),12 while recognising that we are concerned with parties whose causal contributions are individually insufficient to complete the tort. However, this label can still cause confusion. In particular, most tortious liability attaching to secondary wrongdoers is primary in the important sense that all wrongdoers are jointly liable for the same tort, subject to rights of contribution. Joint tortfeasors are therefore ‘principals’ rather than ‘accessories’ in the strict sense.13

5.13  Non-causative secondary wrongdoing. Relational secondary wrongdoing differs from causative secondary wrongdoing in three important ways. First, it is the status of the secondary actor or her relationship with the primary wrongdoer which is relevant, rather than the materiality of her causal contribution to primary wrongdoing. Examples of non-causative relational secondary conduct include: wrongdoing by B which occurs within the scope of her employment or agency to A;14 unauthorised wrongdoing carried out by B but subsequently ratified by A;15 and primary wrongdoing done on premises controlled by A.16

5.14 Second, relational attribution is broader, encompassing all tortious conduct that occurs within the scope of the relationship. Causative doctrines only attribute conduct to A above a certain normative and factual threshold based on A’s participation. Finally, the policy concerns which motivate doctrines of relational secondary wrongdoing differ substantially from those governing causative secondary wrongdoing.17

5.15 Many usages of the word ‘liability’ can be identified. This work uses it in its most conventional sense to describe the consequence of a person being held legally responsible for events characterised as civil or criminal wrongdoing. The pithy phrase ‘D is liable’ is shorthand for a legal formula which refers to the obligation imposed (or recognised) by a court order to supply a prescribed remedy in response to an event.18 That event is usually, but need not always be,19 characterised as a legal or equitable wrong. The consequence of holding D liable is that C can go to court and obtain an order for a remedy against D. The traditional function of tort law was to determine which events generate these remedial obligations and which do not.20 It makes a defendant answerable to the claimant ‘under the rules to be blamed, punished, or made to pay’.21

5.16  No secondary liability without primary wrongdoing. To establish secondary liability in tort requires the claimant to show two things. First, reflecting its ‘parasitic’ nature, there must be some primary wrongdoing, without which it is ‘self-evident’ that no liability can attach to other parties.22 For example, there can be no joint liability for trade mark infringement without a finding of primary infringement.23 Similarly, there can be no inducement of a breach of contract without a primary breach, or interference with business by unlawful means without an independently actionable wrong: ‘No secondary liability without primary liability’, as Lord Hoffmann surmised in OBG.24

5.17  Connecting factors. Second, the secondary wrongdoer’s conduct must fall within a recognised connecting factor. This specifies a threshold of causative participation and mental culpability which are, in combination, normatively sufficient for ‘concurrent fault’.25 This section discusses three: (1) procurement of a wrong; (2) participation in a common design to carry out a wrong; and (3) authorisation of a wrong, including by ratification. Despite some confusion,26 these connecting factors are disjunctive ‘facets’ of secondary liability.27

5.18 Together, the connecting factors identify the situations when a sufficient nexus exists between secondary and primary wrongdoers to justify extending liability to the former. They are non-exhaustive and it would, as Bankes LJ observed in The Koursk, ‘be unwise to attempt to define the necessary amount of connection’ in the abstract.28 For example, they are routinely supplemented or even abrogated by statutory secondary liability, as in the case of copyright and partnerships.29 Overanalysis of the connecting factor should be avoided; as Lord Toulson observed in Fish & Fish Ltd v Sea Shepherd UK: ‘There is much to be said for keeping the law in this area as simple as possible.’30

5.19 One commonality may be that they each describe ways a secondary actor can become so involved in the primary wrong as to make those acts ‘his own’.31 In other words, these parallel criteria each offer alternative ways of determining whether a secondary wrongdoer has voluntarily assumed responsibility for the primary wrongdoer’s conduct.32 The following subsections analyse their boundaries.

5.20 Secondary liability for procuring arises where A intentionally causes B ‘by inducement, incitement or persuasion’ to engage in particular acts infringing C’s rights.33 Procurement of a tort is not a separate tort.34 Instead, it makes the secondary wrongdoer liable as a joint tortfeasor. Correctly understood, it has two elements: physical and mental.

5.21  Causation. To procure a wrong requires that A’s conduct must cause it in the sense described previously. In Allen v Flood, Lord Watson expressed the principle in broad terms in the context of inducing a breach of contract:

He who wilfully induces another to do an unlawful act which, but for his persuasion, would or might never have been committed, is rightly held to be responsible for the wrong which he procured.35

5.22 On this view, procurement must exert a material causal influence upon the primary wrongdoer. This is a significantly higher threshold than mere facilitation. In Belegging-en Exploitatie Maatschappij Lavender BV v Witten Industrial Diamonds Ltd, the Court rejected the claimant’s contention that ‘aiding’ infringement by selling a sub-component of a patented invention was procurement: ‘Facilitating the doing of an act is obviously different from procuring the doing of the act.’36

5.23  Mere supply insufficient. Although the dividing line can be a matter of degree, Belegging illustrates a case in which there was no ‘nexus’ between the defendant distributor and purchasers who used its product, an industrial diamond grit, to infringe the claimant’s patent. Even if the sole use of the grit was to infringe the patent, this would be insufficient: to procure, the sellers must have ‘wilfully induced someone’ to infringe. However, the mere supply of an object is not evidence of a common intent with its purchaser. By analogy, the same approach may be applied to services supplied by internet intermediaries which have tortious uses.

5.24 Similarly, in Cadbury Ltd v Ulmer GmbH, a distributor of generic flaked chocolate bars was not a procurer but a mere facilitator when it sold the bars to retailers who incorporated them into ice cream and thereby infringed the claimant’s trade marks.37 The inducement in these cases did not supply sufficient persuasion that without it the wrong ‘would or might not have occurred’.

5.25 These principles were followed by Arnold J in eBay.38 Citing CBS, Arnold J drew no distinction between secondary liability for trade mark infringement and other types of primary wrongdoing.39 This suggests that, notwithstanding the distinct statutory language and policy objectives reflected in copyright, contractual, and other wrongs, a unified concept of procurement applies throughout English tort law. Similarly, in Cadbury the Court held that the principles of joint tortfeasorship which apply to copyright ‘are equally applicable’ to trade marks.40

5.26 In Football Dataco Ltd v Stan James plc,41 the Court of Appeal reviewed the authorities on joint tortfeasorship in the context of a gambling website which enabled its visitors to access betting information that had been extracted from a database without authorisation. Sir Robin Jacob concluded:

So the question boils down to this: if A has a website containing infringing material which will inevitably be copied into the computer of B if he enters that website, is A a joint tortfeasor with B? I am conscious that this question is important. The answer would seem to apply equally to copyright as to database rights. If the answer is yes, then the owner of any website anywhere in the world will be a joint tortfeasor with a UK user of that website if the inevitable consequence of access to that site by the user is infringement by that user.

I would hold the answer to be yes. The provider of such a website is causing each and every UK user who accesses his site to infringe. His very purpose in providing the website is to cause or procure acts which will amount in law to infringement by any UK user of it. The case is not one of a mere facilitator, such as eBay or Amstrad where the choice to infringe or not ultimately lay with the consumer. Here Stan James is in reality responsible for the punter’s infringement.

5.27 As a result of this decision, it appears that a website operator who inevitably causes its visitors to commit wrongdoing will be liable as a joint tortfeasor with those visitors for the resulting wrongs. The distinction between a case like Football Dataco and a case such as eBay is that, in the former case, infringement is wilfully induced because it is inevitable as a result of actions taken by the website operator, whereas in the latter case the platform can be used in both infringing and non-infringing ways, and the choice between them lies beyond the control of the platform operator. However, this reasoning is difficult to reconcile with Belegging.

5.28  Procurement from abroad. The significance of Football Dataco lies in its geographical reach. As the Court acknowledged, if wrongdoing in the United Kingdom is induced by a website operator, it will not matter that the operator is domiciled abroad and themselves carries out no act in the United Kingdom. It may even be so that the website is not targeted at users in the United Kingdom, since if the inevitable result of local access is some form of wrongdoing in the United Kingdom, the Football Dataco test of procurement would appear to be satisfied whether or not the website itself has anything to do with the United Kingdom.

5.29 The second element focuses attention on the mental state of the procurer and how his conduct ‘wilfully’ sought to influence the primary wrongdoer. Ordinarily, A must intend B to engage in wrongful conduct in a particular way. This entails knowing of at least the existence of the primary right to be interfered with and the acts to be performed, while possessing any mental element necessary for primary liability.42 This requirement distinguishes fault-based procurement liability from primary liability, which may be strict (as in the case of copyright and defamation).

5.30 Where A intentionally procures B to break her contract with C, A may be liable under the separate tort of inducing a breach of contract. This liability derives, but is conceptually distinct, from B’s primary liability in contract.43 As Erle J reasoned in Lumley v Gye, ‘the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong’.44

5.31  Status of inducement liability. Inducing a breach of contract has a special status because, unlike other forms of tortious procurement, it imposes secondary liability under a separate tort: the procurer is a wrongdoer in tort, while the primary wrongdoer is liable on the contract. Despite this difference, the House of Lords made clear in OBG that Gye is analogous to other forms of joint tortfeasorship.45 Both are forms of secondary liability, in ‘sharp distinction’ to wrongs to which primary liability attaches. Both require proof of actionable primary wrongdoing. This difference may explain the confusion which has led some judges to treat Gye as a case where ‘both the opera singer and the defendant were joint wrongdoers participating in an unlawful common design’.46 Ultimately, it may be unimportant which description is preferred: in either case, the secondary wrongdoer is liable in tort and that liability is parasitic from the primary breach.

5.32  Inducing breach of other legal obligations. OBG did not finally resolve whether it is possible to induce a breach of ‘other actionable obligations’47—such as procuring breach of statutory duty48 or persuading someone to interfere in privacy—but it seems arguable that any intentional interference with legal rights might create secondary liability.49 The question is always whether the secondary party has induced, incited, or persuaded the primary breach of duty with the required knowledge and intent. As Carty concludes, procurement applies ‘throughout the civil law’.50

5.33  Summary. Two or more parties will be joint wrongdoers when the combination of their respective actions amounts to the commission of a tort and each of their activities was done pursuant to a common design. As Lord Toulson summarised the principle in Sea Shepherd:

To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. I do not consider it necessary or desirable to gloss the principle further.51

In that case, the defendants were (1) a registered charity whose activities included a campaign to intercept and oppose illegal bluefin tuna fishing (‘D1’), (2) a related American conservation society, and (3) the director of the charity who captained a boat which intercepted the claimant’s vessel and thereby caused damage. The boat was owned by the charity. The trial judge held that D1 had played a minimal role in the tort and so had not provided the necessary degree of assistance or common action. A majority of the Supreme Court upheld this conclusion.52

5.34  Earlier formulations.In The Koursk, Scrutton LJ gave the classic description of common design joint tortfeasors as those ‘who agree on common action, in the course of, and to further which, one of them commits a tort’.53 This doctrine has its origins in Sir John Heydon’s Case: ‘all coming to do an unlawful act, and of one party, the act of one is the act of all of the same party.’54 More recently, in Revenue and Customs Commissioners v Total Network SL, Lord Neuberger referred to the

well-established principle that, where two or more parties join together in some way with a view to assisting or enabling one or more of them to commit a tort, all are liable for the tort as joint tortfeasors.55

5.35 The basic justification for attribution is that where there is consensus between the parties to cause wrongdoing, all ‘are active in the furtherance of the wrong’.56

5.36 The required causal link is ‘concerted action to a common end’,57 rather than independent but cumulative or coinciding acts. This entails three requirements.

5.37  Agreement. First, there must be concert: to be concerted or agreed involves an element of mutuality, rather than mere unilateral invitation, instruction, or silence.58 The agreement may be tacit or express,59 but it must include the tortious act or omission.60 It is clear that the agreement may be inferred. However, circular formulations (such as the need for a ‘common design’) should be avoided since they add nothing.61

5.38  Action. Second, there must be action: ‘some act in furtherance of the common design—not merely an agreement’.62 As Bankes LJ cautioned in The Koursk: ‘It would be unwise to attempt to define the necessary amount of connection.’63 All relevant circumstances must be considered. However, it is clear that the involvement of the secondary party must not be trivial; there must be some positive assistance given to the acts comprising the primary wrongdoing:

the assistance provided by the defendant must be substantial, in the sense of not being de minimis or trivial. However, the defendant should not escape liability simply because his assistance was (i) relatively minor in terms of its contribution to, or influence over, the tortious act when compared with the actions of the primary tortfeasor, or (ii) indirect so far as any consequential damage to the claimant is concerned.64

5.39 In Sea Shepherd, Lord Sumption explained the degree of involvement required in the following terms:

The assistance which is said to further the common design must be material, but that means no more than that it must be more than de minimis. There is no justification in principle for requiring more than this, for example that the assistance should have been indispensable to the commission of the tort or commensurate with the responsibility of the primary actor.65

5.40  Degree of assistance. Once a secondary party has provided substantial assistance, in the sense of some actual contribution to the wrongdoing, the degree of their contribution is irrelevant to the question of whether or not they are jointly liable. The proper approach is to reflect the secondary party’s degree of responsibility in the apportionment of liability as between the primary and secondary wrongdoer.66

5.41  Examples. In Douglas v Hello! Ltd [No 2], the publication of private photographs was sufficient ‘taking part’ to make their publisher jointly liable with the photographer for interfering with the claimants’ privacy.67

5.42 Conversely, in Sea Shepherd, the first defendant provided some assistance in relation to the protest operation during which the primary wrongdoing occurred. Although it collected some £1730 of donations for the operation as an agent, and recruited two volunteers who assisted in minor ways, the majority held that this was not enough. The secondary party’s role was de minimis, ‘of minimal importance’ and it ‘played no effective part in the commission of the tort’.68 The minority reasoned that the fundraising operation was of itself substantial, being undertaken by the first defendant for the express purpose of financing the tortious activity.69

5.43  Primary wrongdoing within the scope of the agreement. The third requirement is that the scope of the agreement encompassed the act that constituted or gave rise to the tort.70 This is an important limitation, since if a particular activity could be carried out in a number of ways—some of them tortious and some not—then the fact that a tortious means was used by the primary wrongdoer will not be enough for joint liability to attach to the secondary party. Conversely, it is unnecessary to show (1) that the agreement related to a specific act or party, or (2) that the secondary party knew that the act which he assisted constituted a tort or injured the claimant.

5.44 Each secondary party must have intended that the events constituting the primary wrong occurred,71 and must meet any state of mind required of a primary tortfeasor.72 ‘General approval’ of the activities of the primary wrongdoer will not normally be sufficient.73 However, it is unnecessary to prove that the secondary party knew that the activities amounted to a tort, or that the secondary party intended to harm anyone in particular.

5.45 Nevertheless, this sets a high bar, and courts have not abandoned ‘the shackles of CBS’ in subsequent decisions.74 Although intent includes wilful blindness, it does not extend to reckless or negligent failures to know.75 Similarly, the mere supply of equipment or facilities which are known to have tortious applications will not, of itself, prove intent.76 However, other circumstances may suffice, such as a specific subjective intention to bring about the acts constituting the wrong.

5.46 In Sea Shepherd, if the first defendant had provided sufficient contribution to the primary wrongdoing then it would have been held to satisfy the required intention. On the facts, any assistance would have been given in relation to activities which the charity knew were intended or expected to include tortious acts. Such a party ‘cannot escape accessory liability by saying that...he did not support the carrying out of tortious acts’.77 Conversely, if its assistance were given on the express condition that the primary wrongdoer would not carry out tortious acts (and so had honestly believed that none would be committed), then the secondary party would be unlikely to face joint liability.

5.47 Simply facilitating or lending assistance to a primary wrongdoer will not make the assistant secondarily liable. In Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department,78 the House of Lords upheld a decision that:

Mere assistance, even knowing assistance, does not suffice to make the ‘secondary’ party liable as a joint tortfeasor with the primary party. What he does must go further. He must have conspired with the primary party or procured or induced his commission of the tort...or he must have joined in the common design pursuant to which the tort was committed ...79

5.48 The Court properly rejected any general principle of secondary liability by assistance.80 It is always insufficient that the secondary party merely assists, facilitates, or witnesses the primary wrong.81 In this respect, many common definitions of secondary liability are untenably broad.82

5.49 The Supreme Court of the United Kingdom recently upheld Credit Lyonnais, concluding that ‘mere assistance by the defendant to the primary tortfeasor, or “facilitation” of the tortious act, will not do’ to establish joint liability.83

5.50  Historical approach to assistance liability. The aversion to civil assistance liability is long-standing. In one of the earliest decisions, Townsend v Haworth, the Court of Appeal excused a seller of chemicals used in a patented process who indemnified purchasers against infringement of the plaintiff’s patent. Merely to supply, even with knowledge that the purchaser will infringe, does not make the seller ‘a party with the man who so infringes’.84

5.51 In Dunlop Pneumatic Tyre Co Ltd v David Moseley & Sons Ltd, the Court of Appeal extended the principle by holding that even to sell an article for the sole purpose of enabling another to infringe a patent will not create secondary liability.85 Later, in Amstrad, Lawton LJ explained the underlying policy as a concern not to enlarge the patentee’s monopoly:

mere supplying with knowledge and intent will not be enough to make the supplier himself an infringer or a joint tortfeasor with someone who is. That this should be so is surprising until one remembers...that the law relating both to patents and copyright is in restraint of trade. Patentees and the owners of copyright have the rights given them by statute and no others.86

5.52  Assistance coupled with instruction. By contrast, in Rotocrop International Ltd v Genbourne Ltd, the manufacturer supplied disassembled compost bins which, when assembled, would infringe the claimant’s patent. In supplying the bins with assembly instructions, the vendor entered into a common design with purchasers to infringe.87Belegging also assumed that vendors could sell components ‘in circumstances which in some way made them participants in’ tortious uses of them.88

5.53  No liability from mere sale. In CBS v Amstrad, the House of Lords applied Townsend to reject a claim that mere sale of goods was capable of creating joint tortfeasance.89 The seller ‘did not ask anyone’ to infringe (which would be procurement), and there was no common design to infringe copyright, because Amstrad did not supply specific instructions or decide the purpose for which the machines should be used; purchasers did, without any agreement between them and the vendor.

5.54 One apparent exception to the principle that assistance is never sufficient is the equitable doctrine of instruments of deception. A long line of authorities establish that injunctive relief may issue to prevent equipping another with such an instrument. In some cases, damages appear to be awarded, though in most cases monetary relief is available only where the defendant is actually a joint tortfeasor.90 These cases are discussed further in chapter 7.91 They can be seen as instantiations of the wider principle that a party who intentionally participates in a common design to carry out tortious activity faces tortious secondary liability, while a party who facilitates equitable wrongdoing by bringing goods into their possession may be enjoined from parting with those goods.

5.55eBay supplies an example of joint tortfeasance being alleged against an application-layer service. eBay operated a marketplace to which, as at 2009, 125 million active listings had been published.92 The claimants argued that eBay was jointly liable for trade mark infringement with registered users who sold counterfeit and parallel-imported versions of the claimants’ perfume and cosmetic goods. They pointed to four features in support of a common design. First, eBay encouraged infringing sales by advertising listings for trade marked goods, without warning non-EEA sellers that exporting to EEA countries could infringe. Second, eBay possessed technical and legal control over sellers, transactions, and listing content, but failed to take adequate steps to prevent infringement. Its listing policies prohibited the sale of counterfeit and other infringing items, and it regularly (but imperfectly) enforced those policies against sellers.93 Third, as a quasi-auctioneer eBay had a relationship of proximity to sellers, and knew infringements were ongoing. Finally, eBay made substantial profits from the tortious activity.

5.56  No duty to prevent primary wrongdoing. Arnold J reluctantly concluded that these features were insufficient. The starting position was that tort law imposed ‘no legal duty or obligation to prevent infringement’.94 Liability as a joint tortfeasor is the consequence of failing to discharge a duty (not to procure or participate in a tortious design), and not the source of such a duty. It followed that if eBay was under no duty to act, then whether or not it failed to take reasonable steps was irrelevant. The claimants’ argument was therefore circular: it assumed the duty it set out to prove. All that could be said was that eBay’s platform facilitated acts of infringement by sellers, but mere facilitation with knowledge and intent to profit was not enough to satisfy any known connecting factor.

5.57  Encouragement insufficient. General encouragement to sell non-EEA goods on European eBay websites was insufficient to conclude that eBay was part of a common design with sellers to infringe by the sale of parallel imports; if anything, eBay’s takedown policies, community moderation standards, and listing rules suggested the opposite conclusion. Although eBay could do more to prevent infringement, it was not legally obliged to do so.

5.58  Injunctive relief. Despite holding that eBay clearly was not liable as a joint tortfeasor, the Court left open the possibility that eBay might owe non-monetary duties to prevent future infringements under article 11 of the Enforcement Directive.95 This issue is considered further in chapters 7 and 14.96

5.59  Reluctance to insulate intermediaries. In eBay, Arnold J expressed ‘considerable sympathy’ for the view that service providers should be required to do more to internalise the cost of new forms of infringement made possible by their platforms, but nevertheless concluded that joint tortfeasance offered no basis for liability.97 It must therefore be seriously questioned whether these doctrines continue to permit adequate evolution in ‘[t]he attitude of the court to the liability of one person in respect of the activities of another’.98

5.60 It is submitted that tortious secondary liability rules provide relatively unhelpful tools for regulating internet intermediaries. This is for a number of reasons.

5.61  Binary nature of joint liability. First, secondary liability lacks granularity. Its binary nature forces courts to choose between complete immunity and joint liability, while offering no express mechanism to moderate secondary wrongdoers or allocate proportionate responsibility once admitted within the gates of liability. Doctrines of contribution could alleviate this concern, but this means shifting the risk of non-recovery to the less blameworthy party.

5.62  Boundaries of primary wrongdoing. Second, joint liability is not concerned to ensure that policy objectives underlying primary wrongs are maximised; those wrongs may themselves furnish better tools for doing so. If the requirements of primary liability are not satisfied, but there are compelling reasons to reform those requirements, then that will normally be a more appropriate response than manipulating the claim to fall within a connecting factor for tortious secondary liability.

5.63  Ambiguity and uncertainty. Third, in many cases the connecting factors themselves are vague, overlapping, and empty of content. Because they are parasitic on primary rights, arguments that a service provider is liable as a secondary tortfeasor are often circular, since they assume the existence of a duty to police or prevent primary wrongdoing, as in eBay. For this reason, they are often redundant, since extended primary duties have developed which mirror the functions of secondary liability doctrines.

5.64  High thresholds of liability. As Aldous LJ observed in British Telecommunications plc v One in a Million Ltd, civil secondary liability is ‘evolving to meet changes in methods of trade and communication as it had in the past.’99 However, despite its inherent flexibility, cases like eBay demonstrate the futility of using secondary liability rules as the primary means of regulating internet intermediaries. The now-axiomatic principle that mere assistance is insufficient absent a fiduciary relationship presents an ‘insurmountable’ standard of fault for claimants to satisfy.100 Without obvious inducement of wrongdoing, conduct by neutral network- and application-layer services will rarely be sufficient. In most cases, those services expressly exclude responsibility and act as mere facilitators.

5.65 In Google France SARL v Louis Vuitton Malletier SA, the Court of Justice rejected claims of prima facie liability for use of the claimant’s trade marks in keyword advertisements on the defendant’s search engine, such advertisements not being use by the defendant.101 However, the Court did advert to the possibility of liability attaching under ‘rules of law other than’ European trade mark law, potentially inviting national courts to apply domestic secondary liability rules.102 In England, at least, this seems unlikely as a result of the combined effect of eBay and CBS.

5.66 Procurement and common design are meant to describe clear thresholds of conduct sufficient to justify imposing liability for the wrongdoing of another. Those thresholds are, at best, vague and, at worst, circular and incoherent.

5.67  Examples of vagueness. Joint liability has been described as an ‘elusive question’.103 As the Court observed of a joint defendant in C Evans & Son Ltd v Spritebrand Ltd, ‘broad considerations of policy may be material in deciding on which side of the line his participation fell’.104 In short, ‘each case depends upon its own particular facts’,105 which entails a costly trial and unnecessary risk for both parties. While this reflects the contestable nature of secondary liability, the tests applied are essentially circular, since they reduce to asking whether the secondary party ‘has been personally involved in the commission of the tort to an extent sufficient to render him liable as a joint tortfeasor’.106

5.68 Subsequent courts have pointed out the ‘obvious’ recursion this enquiry invites.107 The reason, they suggested, was that secondary liability raises policy questions which require contextual, case-by-case resolution. In a sense, this is all these doctrines are meant to do: they elude precise definition yet furnish conceptual structures for analysing the causal and relational culpability of secondary actors in particular cases. However, like tests of ‘proximity’ and ‘fairness’ introduced to the modern law of negligence, these incremental, case-by-case tools are difficult to apply and provide little ex ante guidance to potential litigants.

5.69  Relationship between procurement and common design. Common design is sometimes described as a broader category than procurement, since consensus is more easily demonstrated than inducement.108 Consequently, as Mustill LJ observed in Unilever v Gillette, many procured wrongs will satisfy both heads and amount to ‘different aspects’ of the same secondary wrongdoing.109 However, it is also narrower, in that A must actually take part in the plan. Like procurement, common design comprises physical and mental elements.

5.70 Although common design is conceptually distinct from procurement, there is ‘considerable overlap’ between them110 and judges tend to treat them together111 or as instances of a wider principle that A is liable as a joint tortfeasor wherever he makes B’s infringement ‘his own’.112 Slade LJ described the inquiry as whether the defendant ‘is actually a joint tortfeasor or has procured or incited such act’,113 suggesting a certain level of taxonomic confusion. Some cases simply use the terms interchangeably,114 which is regrettable.

5.71 Procurement and common design are not the only attachment points for secondary liability.115 Atiyah and Carty each identify a third connecting factor: common law authorisation.116 Simply granting permission to do something tortious is ordinarily insufficient for secondary liability.117 Cases of authorisation are therefore exceptional, and generally arise in two circumstances: prospective authorisation of nuisance which is virtually certain to occur and reasonable to prevent;118 and retrospective ratification of an agent’s tort.119 Both categories can be understood as ways in which a principal has assumed responsibility for primary wrongdoing by licensing the tortious activity.120 Ratification is simply the retrospective version of authorisation, occurring after the primary wrong.121 Common law authorisation is of peripheral interest to a work on internet intermediaries; statutory authorisation is discussed elsewhere.122

5.72 In parallel to the common law connecting factors, personal liability attaches in equity to one who dishonestly procures or assists in a breach of fiduciary duty.123 Like its common law cousins, it has two elements.

5.73  Assistance. First, the secondary party must have materially assisted the primary breach.124 This liability is properly described as causative, since, ‘if there is no causative effect and therefore no assistance given by the [defendant]...the requirements of conscience [do not] require any remedy at all’.125 It is also derivative, since it cannot arise without a primary breach of duty.

5.74  Dishonesty. Second, the secondary party must have acted with ‘consciousness of those elements of the transaction which make participation transgress ordinary standards of honest behaviour’.126 This liability is therefore fault-based127 and, although parasitic, exists independently of any remedies available against the defaulting fiduciary.128 For example, the fiduciary may be liable to account for profits made from their wrongdoing, while the assistant may make no profit but be liable to pay equitable compensation for any shortfall.

5.75  Scope of application. Dishonest assistance is sometimes described as a ‘general principle of “accessory liability”’ in equity.129 On this view, it would grant relief against those who dishonestly assist breaches of confidence and other equitable wrongdoing.130 Some authorities suggest an even more general principle of inducing breach of equitable duty131 or ‘equitable fraud in a third party knowingly to assist in a breach of trust, confidence, or contract by another’.132 Stevens argues that dishonest assistance ‘is a tort in all but name.’133 However, it remains a separate and parallel doctrine to joint tortfeasance.

5.76  Policy considerations. The doctrine of dishonest assistance is commonly said to be justified by the special status of a fiduciary relationship, which is characterised by the voluntary assumption of responsibility by the fiduciary134 and vulnerability of the principal.135 Without an equivalent relationship at common law, the prophylaxis of dishonest assistance is limited to equitable wrongs. Assistance, however dishonest, is insufficient in tort.136 The requirement of dishonesty is also said to reflect a limitation which is ‘founded on a pragmatic concern to limit the propensity of the law of tort to interfere with a person’s right to do things which are in themselves entirely lawful’.137

5.77 Internet intermediaries may be criminally liable as accessories where they participate in criminal wrongdoing with the required mental element. Criminal accessory liability is defined both by statutory and common law rules. Any accessory who ‘shall aid, abet, counsel or procure the commission of any indictable offence...shall be liable to be tried, indicted and punished as a principal offender’.138 The exact boundaries of secondary participation in crime are the subject of extensive case law, and readers are referred to a specialist work for detailed treatment. In broad terms, these connecting factors are in some ways wider than those of the civil law; for example, civil liability will not attach for merely assisting or aiding a civil wrong.139 They are also narrower: the accessory must know or believe that the primary acts will occur.

5.78 In 2007, three new forms of criminal accessory liability were enacted: (1) intentionally encouraging or assisting an offence; (2) encouraging or assisting an offence, believing it will be committed; and (3) encouraging or assisting offences, believing one or more will be committed.140 These offences are not limited to offline crimes and could, in theory, be applied to service providers who relevantly encourage or assist digital crimes, such as unauthorised access to computer material141 or wrongful disclosure of classified security or intelligence information.142

Notes
1

Peter Birks, ‘Civil Wrongs: A New World’ in Butterworths Lectures 1990–1991 (1991) 55, 100.

2

[1970] AC 1004, 1030 (Lord Reid) (‘Dorset Yacht’).

3

See, eg, Haynes v Harwood [1935] 1 KB 146 (driver for bolting horse); Newton v Edgerley [1959] 1 WLR 1031 (father for child’s use of weapon).

4

Cf Philip Sales, ‘The Tort of Conspiracy and Civil Secondary Liability’ (1990) 49 Cambridge Law Journal 491, 503; French Civil Code art 1382 (extending quasi-strict causative liability).

5

[2008] 1 AC 1, 27 (Lord Hoffmann) (‘OBG’).

6

OBG, 59 (Lord Nicholls).

7

Grimme Landmaschinenfabrik GmbH & Co KG v Scott [2011] FSR 7, 217 (Jacob and Etherton LJJ).

8

Revenue and Customs Commissioners v Total Network SL [2008] 1 AC 1174, 1235 (Lord Hope), 1241 (Lord Scott), 1255–6 (Lord Walker), 1258–9 (Lord Mance), 1285–6 (Lord Neuberger).

9

As distinct from labels such as ‘accessory’, ‘indirect’, or ‘contributory’ liability.

10

Total, 1209. Cf L’Oréal SA v eBay International AG [2009] EWHC 1094 (Ch); [2009] RPC 21, [344]–[346] (Arnold J) (‘eBay’).

11

Credit Lyonnais, 500 (Lord Woolf MR); CBS, 1059 (Lord Templeman). Labels such as ‘indirect’ confuse the nature of liability with the method of acting. Cf Paul Davies, ‘Accessory Liability: Protecting Intellectual Property Rights’ [2011] 4 Intellectual Property Quarterly 390.

12

Cf Unilever plc v Gillette (UK) Ltd [1989] RPC 584, 608–9 (Mustill LJ) (Ralph Gibson and Slade LJJ agreeing) (‘Unilever v Gillette’).

13

Pey-Woan Lee, ‘Inducing Breach of Contract, Conversion and Contract as Property’ (2009) 29 Oxford Journal of Legal Studies 511, 521.

14

See Lister v Hesley Hall Ltd [2002] 1 AC 215. Cf French Civil Code art 1384(1) (extending strict liability for acts of persons for whom D is ‘responsible’).

15

See Eastern Construction Co v National Trust Co [1914] AC 197.

16

See, eg, Famous Music Corporation v Bay State Harness Racing and Breeding Association Inc, 554 F 2d 1213, [6] (1st Cir, 1977) (imposing liability for infringing performances on property controlled by the defendant). These cases can be viewed as breaches of a primary duty to take reasonable steps to prevent land from causing harm to others: see Leakey v National Trust for Places of Historic Interest or National Beauty [1980] QB 485, 517–19 (Megaw LJ).

17

See Patrick Atiyah, Vicarious Liability in the Law of Torts (1967) 12–28.

18

Peter Birks, ‘Rights, Wrongs, and Remedies’ (2000) 20 Oxford Journal of Legal Studies 1, 23.

19

Robert Stevens, Torts and Rights (2007) 58 (giving the example of an injunction prohibiting lawful conduct).

20

Oliver Wendell Holmes, The Common Law (first published 1881, 1963 ed) 64.

21

Herbert Hart and Tony Honoré, Causation in the Law (2nd ed, 1985) 65.

22

Total, 1255 (Lord Walker).

23

See, eg, the argument in Interflora Inc v Marks and Spencer plc [No 1] [2009] EWHC 1095 (Ch); [2009] RPC 22, [79] (Arnold J).

24

OBG, 31 (Lord Hoffmann).

25

Glanville Williams, Joint Torts and Contributory Negligence (1951) 2.

26

See, eg, CBS, 1058 (Lord Templeman) (D liable if ‘he intends and procures and shares a common design that infringement shall take place’) (emphasis added); cf MCA Records Inc v Charly Records Ltd [2002] FSR 26, 424 (Chadwick LJ) (‘MCA Records’) (treating the test as disjunctive).

27

Unilever v Gillette, 595 (Mustill LJ).

28

The Koursk [1924] P 140, 151 (Bankes LJ) (‘The Koursk’).

29

See Partnerships Act 1890 (UK) s 10.

30

[2015] AC 1229, [20] (Lord Toulson JSC) (‘Sea Shepherd’).

31

Sabaf SpA v Meneghetti SpA [2003] RPC 264, 284 (Peter Gibson LJ) (‘Sabaf’).

32

Cf Caparo Industries plc v Dickman [1990] 2 AC 605, 628–9 (Lord Roskill) (describing a duty arising from assumptions of responsibility for the performance of an activity).

33

CBS, 1057–8 (Lord Templeman).

34

Amstrad, 66 (Glidewell LJ); citing Belegging, 66.

35

Allen v Flood [1898] AC 1, 106–7 (Lord Watson) (emphasis added).

36

[1979] FSR 59, 65–6 (Buckley LJ) (‘Belegging’).

37

[1988] FSR 385, 398 (Falconer J) (‘Cadbury’).

38

See paragraphs 5.55 to 5.59.

39

eBay, [359] (Arnold J).

40

Cadbury, 404 (Falconer J).

41

[2013] EWCA Civ 27, [96]–[97] (Sir Robin Jacob) (Lloyd and Lewison LJJ agreeing) (‘Football Dataco’).

42

See Atiyah, n 17, 290–1.

43

OBG, 19, 30–31 (Lord Hoffmann), 59 (Lord Nicholls), 86 (Baroness Hale), 91–2 (Lord Brown).

44

(1853) 2 E & B 216, 232 (Erle J). See also at 238 (Wightman J).

45

See Burton Ong, ‘Two Tripartite Economic Torts’ (2008) 8 Journal of Business Law 723, 725.

46

CBS, 1058 (Lord Templeman).

47

OBG, 62 (Lord Nicholls).

48

See, eg, Meade v Haringey London Borough Council [1979] 1 WLR 637, 651 (Eveleigh LJ).

49

See, eg, Associated British Ports v Transport & General Workers’ Union [1989] 1 WLR 939, 952 (Neill LJ).

50

See Hazel Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999) 19 Legal Studies 489, 507.

51

Sea Shepherd, [21] (Lord Toulson JSC).

52

Sea Shepherd, [27] (Lord Toulson JSC), [80] (Lord Neuberger PSC), [87] (Lord Kerr JSC) (Lord Sumption and Lord Mance JJSC dissenting).

53

The Koursk, 155 (Scutton LJ).

54

(1612) 11 Co Rep 5a, 5b; 77 ER 1150, 1151.

55

[2008] 1 AC 1174, 1286 (Lord Neuberger) (‘Total’).

56

Williams, n 25, 10.

57

The Koursk, 156 (Scrutton LJ); Credit Lyonnais, 493, 499 (Lord Woolf MR).

58

Townsend v Haworth (1879) 48 LJ (NS) 770.

59

Lubrizol Corp v Esso Petroleum Co Ltd [No 1] [1992] RPC 281, 293 (HHJ Laddie QC).

60

Unilever v Gillette, 608 (Mustill LJ).

61

Sea Shepherd, [59] (Lord Neuberger PSC).

62

Unilver plc v Chefaro Properties Ltd [1994] FSR 135, 138, 141 (Glidewell LJ).

63

The Koursk, 151 (Bankes LJ). See Sea Shepherd, [25] (Lord Toulson JSC), [56] (Lord Neuberger PSC).

64

Sea Shepherd, [57] (Lord Neuberger PSC).

65

Sea Shepherd, [49] (Lord Sumption JSC).

66

Sea Shepherd, [49] (Lord Sumption JSC), [57] (Lord Neuberger PSC).

67

[2003] EMLR 28, 596–7 (Rix LJ).

68

Sea Shepherd, [72].

69

Sea Shepherd, [49], [51] (Lord Sumption JSC), [97] (Lord Mance JSC).

70

Sea Shepherd, [60] (Lord Neuberger PSC).

71

CBS, 1058 (Lord Templeman).

72

C Evans & Son Ltd v Spritebrand Ltd [1985] 1 WLR 317, 329 (Slade LJ).

73

Sea Shepherd, [68] (Lord Neuberger PSC).

74

Davies, n 11, 403.

75

OBG, 29–30 (Lord Hoffmann).

76

Sea Shepherd, [41] (Lord Sumption JSC).

77

Sea Shepherd, [68] (Lord Neuberger PSC).

78

[2000] 1 AC 486 (‘Credit Lyonnais’).

79

[1998] 1 Lloyd’s Rep 19, 46 (Hobhouse LJ) (Thorpe LJ agreeing).

80

Credit Lyonnais, 500 (Lord Woolf MR) (Lord Slynn, Lord Steyn, Lord Clyde, and Lord Millett agreeing).

81

Haydon–Baillie v Bank Julius Baer & Co Ltd [2007] EWHC 1609 (Ch), [262] (Morgan J). Cf Pratt v British Medical Association [1919] 1 KB 244, 254 (McCardie J) (describing joint liability in trespass as extending to those ‘who aid or counsel, direct, or join’); citing Petrie v Lamont (1841) Car & M 93; 174 ER 424, 426 (Tindal CJ), which is clearly unsound today.

82

See, eg, OECD, The Role of Internet Intermediaries in Advancing Public Policy Objectives (2011), 94 (describing secondary liability as arising when a party ‘facilitates’ infringement).

83

Sea Shepherd, [38] (Lord Sumption JSC), [58] (Lord Neuberger PSC).

84

(1879) 48 LJ Ch 770, 773 (James LJ), 773 (Mellish LJ).

85

[1904] 1 Ch 612, 618 (Vaughan Williams LJ), 620 (Stirling LJ), 621 (Cozens-Hardy LJ). These authorities may supply one reason for the enactment of s 60(2) of the Patents Act 1977 (UK).

86

[1986] FSR 159, 206 (Lawton LJ).

87

[1982] FSR 241, 259 (Graham J).

88

Belegging, 66 (Buckley LJ).

89

CBS, 1055–7 (Lord Templeman). See further chapter 6, section 1.1.

90

The High Court and Court of Appeal also have jurisdiction to award damages in lieu of, or in addition to, an injunction: Senior Courts Act 1981 s 50; Lawrence v Fen Tigers Ltd [2014] AC 822, 855 (Lord Neuberger PSC).

91

See chapter 7, section 2.2.

92

eBay, [12]–[16] (Arnold J). As at October 2015, the figures were closer to 800 million active listings. See eBay Inc, eBay Fast Facts At-A-Glance (Q3 2015) (October 2015) 2.

93

eBay Inc, User Agreement (13 August 2008); eBay, [42], [88] (Arnold J).

94

eBay, [375]–[380] (Arnold J).

95

See chapter 14, section 4.1.

96

See chapter 7, sections 1.7, 2.2, 2.4, and 2.6.

97

eBay, [370] (Arnold J). Implicit in this view is the assumption that creators of application-layer services which disrupt established commercial practices owe a duty to return the marketplace to the status quo. However, another reason why infringements occur in such quantities on eBay and other online marketplaces may be related to market segregation and price discrimination practices voluntarily adopted by claimants.

98

Amstrad, 198 (Whitford J).

99

[1999] 1 WLR 903, 913 (Aldous LJ).

100

See Dennis Lievens, ‘eBay’s Accessory Liability for Counterfeiting—Why Joint Tort Liability Just Doesn’t Cut the Mustard’ (2011) 42 International Review of Intellectual Property and Competition Law 506, 518–19.

101

Google France, [55]–[56], [104]. See chapter 7, sections 1.2 and 1.4.

102

Google France, [57].

103

Mentmore Manufacturing Co Ltd v National Merchandising Manufacturing Co Inc (1978) 89 DLR (3d) 195, 203 (Le Dain J).

104

[1985] 1 WLR 317, 331 (Cumming-Bruce LJ) (O’Connor and Slade LJJ agreeing).

105

Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507, 515 (Lord Salmon).

106

MCA Records, 418 (Chadwick LJ) (emphasis added).

107

Società Esplosivi Industriali SpA v Ordnance Technologies (UK) Ltd [2008] RPC 12, 297 (Lindsay J).

108

eBay, [359] (Arnold J).

109

Unilever v Gillette, 608–9 (Mustill LJ) (Ralph Gibson and Slade LJJ agreeing).

110

Newzbin, 543 (Kitchin J).

111

See, eg, Dramatico, [83] (Arnold J).

112

Newzbin, 545 (Kitchin J).

113

Amstrad v BPI, 212 (Slade LJ) (emphasis added). Presumably, his Lordship does not intend to treat procurement and incitement as separate categories distinct from joint tortfeasance.

114

Nintendo Company Ltd v Playables Ltd [2010] EWHC 1932 (Ch), [49]–[50] (Floyd J).

115

Unilever, 602 (Mustill LJ).

116

Carty, n 50, 495; Atiyah, n 17, 292–4.

117

Robinson v Vaughton & Southwick (1838) 8 C & P 252, 255 (Alderson B).

118

Harris v James (1876) 45 LJ QB 545, 546 (Blackburn J).

119

The Koursk, 155 (Scrutton LJ).

120

Susan Bright, ‘Liability for the Bad Behaviour of Others’ (2001) 21 Oxford Journal of Legal Studies 311, 320–1.

121

Wilson v Tumman (1843) 6 M & G 236, 242 (Tindal CJ).

122

See chapter 6, section 1.1.

123

Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, 392 (Lord Nicholls) (‘Royal Brunei’).

124

It remains unclear whether passive involvement is sufficient: see Satnam Investments Ltd v Dunlop Heywood & Co Ltd [1999] FSR 722, 743 (Nourse LJ).

125

Brown v Bennett [1999] 1 BCLC 649, 659 (Morritt LJ).

126

Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2006] 1 WLR 1476, 1481 (Lord Hoffmann).

127

Grupo Torras SA v Al-Sabah [No 5] [2001] Lloyd’s Rep Bank 36, 62.

128

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 457–8 (Gummow ACJ, Hayne, Crennan, and Bell JJ).

129

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 160–1.

130

Charles Mitchell, ‘Assistance’ in Peter Birks and Arianna Pretto (eds), Breach of Trust (2002) 139, 152 (citation omitted).

131

See Prudential Assurance Co Ltd v Lorenz (1971) 11 KIR 78.

132

Thomas v Pearce [2000] FSR 718, 720 (Buxton LJ); citing Roger Toulson and Charles Phipps, Confidentiality (1st ed, 1996) 92.

133

Stevens, n 19, 283.

134

See James Edelman, ‘When Do Fiduciary Duties Arise?’ (2010) 126 Law Quarterly Review 302.

135

See, eg, Bristol and West Building Society v Mothew [1998] Ch 1, 18.

136

However, dishonest assistance may eventually approach a level which permits an inference of procurement such as to justify secondary liability in tort.

137

Sea Shepherd, [39] (Lord Sumption JSC).

138

Accessories and Abettors Act 1861 (UK) s 8.

139

Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486, 500 (Lord Woolf MR).

140

Serious Crime Act 2007 (UK) ss 44–46.

141

Computer Misuse Act 1990 (UK) ss 1–3.

142

Official Secrets Act 1989 (UK) ss 5–6.

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