A Supreme Court decision released this week is significant in its finding that a digital file can be considered to be property.

If you remember back to the last Rugby World Cup in 2011, you’ll recall an incident involving a Queenstown bouncer who made a copy of a CCTV recording of the England rugby team’s vice captain, Mike Tindall, socialising with a young woman.

Tindall, who is married to the Queen’s granddaughter, is a prominent sporting celebrity. Any suggestion that he might have been misbehaving while on tour was big news to the scandal-obsessed British tabloid news media.

The bouncer, Jonathan Dixon, accessed the CCTV footage through the computer system of the bar where he worked and transferred a number of video files that featured Tindall onto a USB stick. He tried to sell the video images to overseas news organisations and, when that was unsuccessful, later posted the footage on YouTube.

Dixon was charged and convicted of accessing a computer system for a dishonest purpose under section 249(1)(a) of the Crimes Act 1961.

Accessing a computer system

Section 249(1)(a) says that an offence is committed when a person:

“…directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, without claim of right … obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration”.

The Crown argued that the footage Mr Dixon had obtained was “property” in terms of section 249(1).

Dixon was sentenced to four months’ community detention and 300 hours of community work. He went on to appeal his conviction and sentence on the basis that the judge had erred in finding that the digital files were “property”.

Court of Appeal

The Court of Appeal accepted that the digital files were not property because they were simply “pure information,” in keeping with an orthodox legal view that information is not property.

The Court of Appeal further decided that Dixon was guilty of accessing a computer and obtaining a “benefit”. Obtaining a benefit is also an offence under section 249(1)(a). The Court of Appeal quashed Dixon’s original conviction and substituted the new one of obtaining a benefit. Mr Dixon’s conviction stood and his sentencing appeal was dismissed.

Supreme Court

Dixon then went on to appeal to the Supreme Court. The Supreme Court decision this week unanimously dismissed Mr Dixon’s appeal. The Court reinstated Dixon’s original conviction of obtaining property, and ordered him to complete his original sentence.

Digital file found to be property

The Crown did not argue that “pure information” was property. The Crown position was that the digital file taken by Dixon was “property” within the meaning of the Crimes Act because the file was a thing that could be owned and dealt with in the same way as other items of personal property. The Supreme Court agreed, saying:

“…we consider that the digital files can be identified, have a value and are capable of being transferred to others. They also have a physical presence, albeit one that cannot be detected by means of the unaided senses.”

The Court noted that property as defined in the Crimes Act (section 2) was a broad term and could be both tangible and intangible. The decision leaves open the question of whether digital files are tangible or intangible property.

Privacy Act

In the civil law context, CCTV footage or other digital recordings are already covered under the Privacy Act and the Official Information Act. People have the right to seek access to this information and may seek a remedy under the Privacy Act if information about them is wrongly used or disclosed.

The Dixon decision brings some clarity around how the New Zealand courts will treat digital files in the criminal law context and is consistent with the civil law protections already in place over misuse of digital content. One effect of the decision is to reinforce existing legal protections by extending criminal liability to cover unauthorised access to digital files.

Image credit: Barn owl by James John Audubon.

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