Who is ‘responsible’ for what and when it comes to leaking emails written by others?

I previously jotted down some thoughts on this here, picking up some contrarian arguments from Brian Barder.

On his site the subject has rumbled on, with various readers baffled (as am I) by his argument that insofar as embarrassment and distress have been caused to various indviduals by Labour/Smeargate emails, the person mainly responsible for that has to be Guido who pushed these emails towards the national media.

Two Barder arguments made me chuckle.

First, that it was Guido who leaked the emails into the public domain (whereas of course Guido IS the public domain).

And (now) second, that  Mr Crawford’s position seems to me untenable because whoever leaked the e-mails to Mr Staines can’t have known what he would do with them, nor in particular whether anything he published on his blog or via the print media would actually identify by name those smeared by the accusations and imputations.

Common Law has devised various standards for ascribing responsibility for consequences to those who claim not to know what will happen when they do something stupid: see Recklessness and Negligence. 

Anyone with enough cynicism and emboldened determination to leak this stuff in the first place, who then throws petrol on the fire by choosing Guido of all people as a vehicle for doing so, has to be treated as someone who could reasonably be expected to have guessed that one way or the other the whole lot eventually could get one heck of a lot of publicity. 

In short, this is classic political application of Rylands v Fletcher (1868) which held that

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

He can excuse himself by shewing that the escape was owing to the Plaintiff’s default; or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exits here, it is unnecessary to inquire what excuse would be sufficient.

Exactly.

In this case the calamitous McBride brought on to his area of his publicly funded computer nasty material written by him with input from others, which was ‘likely to do mischief if it escaped’.

He did not look after this material, and it escaped. So he and the other person(s) who decided to put this material into the public domain are answerable for all the damage which is the natural consequence of its escape.

The deep logic of this judgement is that it compels people at the top of the causation chain to bear particular responsibility for what happens to dangerous substances, or even natural substances which might cause damage to others if they escape.

Those top-of-the-chainers can avoid some or all liability if it is clear that they have acted properly and prudently, but others further down the chain have behaved negligently/improperly and caused the damage (the point Brian Barder in effect is seeking to establish). How exactly that works will depend on the facts of each case.

However, as the English legal maxim says "you must come to Equity with clean hands".

In the McBride case, their hands are thick in slime. There is no room or need for subtle hair-splitting analyses of responsibility. They just waste time and distract attention from the Point.

Which is that the sheer perniciousness of what McBride and others were scheming and the fact that they were doing so on official computers makes their personal and political responsibility for what happened thereafter quite overwhelming, whatever Guido and others further down the chain may have done for good (or indeed less good) motives to deploy this material.

My case rests, m’lud.