Most Read Contributor in New Zealand, September 2016
The Supreme Court has this week made a small dent in the
proposition, upheld by the Courts of Appeal in New Zealand and
England last year, that digital data is not property for the
purposes of the law.
The Supreme Court held digital data is property for the purposes
of the criminal law. But civil reliance on property rights
will not suffice to protect electronic information – at least
commented last year on the appeal by Jonathan Dixon, the
Queenstown bouncer who accessed CCTV footage of the England Rugby
Captain in a bar during the 2011 Rugby World Cup.
Mr Dixon was appealing his conviction, for dishonestly obtaining
property by accessing a computer system, on the basis digital data
did not come under the definition of 'property' in the
Crimes Act. The Court of Appeal agreed (but substituted his
conviction with one of dishonestly obtaining a benefit).
Supreme Court judgment
On Mr Dixon's further appeal, the Supreme Court has now
overturned the Court of Appeal, and reinstated the original
conviction, holding the Crimes Act definition of 'property'
was intended to extend to digital data. Mr Dixon is now
ordered to complete his original sentence
The Supreme Court noted the newly created offences were
expressly intended by Parliament "to modernise the
criminal law in relation to crimes against rights of property,
particularly by taking better account of the increasing role of
computers in society".
The Court interpreted the legislative history to mean that
Parliament had in mind a wider definition of 'property'
than arguably existed at common law. Accordingly, the Court
of Appeal was wrong.
However the Supreme Court declined to reconsider "the
orthodox view that information, even confidential information, is
not property", as held by the Court of Appeal. This
was because the Crown argued only that the Court of Appeal was
mistaken in characterising digital files as simply information, and
Mr Dixon was not represented in the Supreme Court.
Nonetheless the Supreme Court noted a divergence between US and
UK authorities. In some US courts, electronic data is
accepted as 'property' capable of supporting a claim of its
conversion. In England, the Court of Appeal (whose judgment
was also the subject of our earlier Brief Counsel,
although apparently not cited to our Court of Appeal) rejected such
an analysis, because electronic data could not be
This was not the occasion to choose sides, although the Supreme
Court noted all jurisdictions agreed information could be property
in particular circumstances. There is a strong suggestion in
the Supreme Court's judgment that, if it had been required to
choose, it would have preferred the American analysis:
[T]he 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
While the Supreme Court's judgment does not in itself
enhance property interests in electronic data (so businesses
reliant on the security of their information still must take
special steps to protect it), it increases the risk faced by people
improperly dealing with electronic data.
One such – a Mr
Watchorn, whose conviction the Crown conceded was wrong in
light of the Court of Appeal's Dixon judgment –
may be thought fortunate in having his convictions
There are other current notorious dealings in electronic data
which may now find themselves on the wrong side of the criminal
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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Data Protection refers to the set of privacy laws, policies and procedures that aim to minimize intrusion into one’s privacy caused by the collection, storage and dissemination of personal data.
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