Friday, February 10, 2006

Interfering with Danish Middle East business prospects

Denmark has in its legal repertoire the concept of intentional interference with contractual relations (informative pdf here).  This is a tort which allows a plaintiff to recover damages if it suffers losses due to the intentional actions of a defendant who knew or ought to have known that its actions would lead to the loss of a contract or, in its extended version, business opportunities, between the plaintiff and a third party.  The Danish  newspaper at the heart of the cartoon controversy has admitted that it solicited and published the cartoons in order to push the envelope to the extent that it would cause a reaction.  That’s the intentional part.  Was the damage foreseeable?  No question.  Any Dane would know that Danish firms do a lot of business in the Middle East, and that a malicious provocation might lead to an economic boycott.  A Danish court would have to weigh the benefit of so-called ‘freedom of speech’ – which is really just freedom to offend – against the risk of injury caused by the publication (see page 21 and 22 of the pdf).  This isn’t a ‘slam dunk’ argument – the Danish court might balk at the idea that this publication is unacceptable behavior as it might be afraid of inhibiting freedom of speech in other areas, or it might find that providing damages with respect to prospective contracts is too wide an extension of the concept, particularly when the offending parties have no obvious economic interest in the Middle Eastern contracts - but it is at least as good as many other legal arguments that are tried.   I would think that some of the Danish companies that are going to lose billions of dollars in lost sales from the Muslim world, sales which they will never get back  – it’s so bad that Muslim shopkeepers in Toronto (!) are having to go through their entire inventory to remove Danish products – should consider suing the editor, the newspaper, and any Danish politicians who helped stir the pot in this obvious conspiracy to further right-wing anti-immigrant policies in Denmark. 

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