Are my computer files mine? The curious case of Dixon v R

Are my computer files mine? The curious case of Dixon v R
Thursday November 12, 2015

Background It is no secret that the law has struggled to keep up with the ever-quickening pace of technological change. The recent Supreme Court decision of Dixon v R is another example of how the courts are trying to reconcile laws designed for the real world with the digital world. During the 2011 Rugby World Cup, the English rugby team visited the Altitude Bar in Queenstown, where Jonathan Dixon worked as a bouncer. One of the players, Mike Tindall, was observed interacting with a woman at the bar. Mr. Dixon asked the bar’s receptionist for video footage of Mr. Tindall interacting with the woman, which had been captured by the bar’s CCTV system. Mr. Dixon copied the footage to his USB drive and tried to sell it to overseas media organisations. When his sales efforts were unsuccessful, Mr. Dixon posted the footage on YouTube. Mr. Dixon’s actions resulted in a complaint to the Police, who charged him with the offence of accessing a computer system and dishonestly obtaining property (ie. the CCTV footage) under the Crimes Act 1961, s249(1)(a). In the Invercargill District Court, Mr. Dixon was convicted of accessing a computer system and dishonestly obtaining property and was sentenced to four months’ community detention and 300 hours of community work. Mr. Dixon appealed his conviction and sentence on the grounds that the footage was not property. The Court of Appeal held that a digital file does not fall within the statutory definition of property and substituted a conviction for accessing a computer and obtaining a benefit. The Court went on to dismiss Mr. Dixon’s appeal against his sentence. The Supreme Court granted Mr. Dixon leave to appeal the Court of Appeal’s decision. The Supreme Court’s Reasoning The Court commenced by emphasising that information itself cannot be property. It then reviewed the new definitions of ‘property’ and ‘document’ which had been introduced in the Crimes Amendment Act 2003. It held that digital files fall within the definition of ‘document’ for a number of reasons:

  • The Court approved the Court of Appeal’s observation in R v Misic that a document was not to be identified by the medium on which it exists (eg. papyrus, clay tablet, paper) but rather by whether there is “a material record of information”.
  • The Court considered that Parliament had stored data in mind when it drafted the computer crime provisions introduced in the Crimes Amendment Act 2003.
  • The Court also found that a digital file possesses a number of characteristics associated with property; it is capable of being owned, transferred and has a material presence because it takes up space on a storage device.

The Court looked at the approach overseas, where the United States courts have accepted that software and electronic records are property. Conversely, the English courts have agreed in principle that digital files are intangible property but have held that they cannot be tangible property. The Court concluded that the Court of Appeal had erred by determining that digital files cannot be property. Its decision was based on the similarities between real documents and digital files as well as precedent supporting the conclusion that digital files share the features of property. As a result, the Court reinstated Mr. Dixon’s original conviction for accessing a computer system and dishonestly obtaining property. Implications of the Decision In some ways, the Supreme Court’s decision helps to resolve some of the issues raised by the Court of Appeal’s decision. If person “A” takes a piece of paper containing confidential information, they can be convicted of theft because they have deprived person “B” of the piece of paper, not because they have taken the information on the paper (since information does not fall within the definition of ‘property’). Similarly, if person “A” takes a digital file from person “B”, they have deprived person “B” of their property. Therefore, the Supreme Court has aligned the legal position on this issue in the real world and the digital world. However this decision raises a number of important questions, which are discussed by Professor Andrew Geddis of the University of Otago Faculty of Law. The Court’s decision has a number of implications for people receiving digital files that have been improperly obtained. For example, if person “A” steals a digital file containing a movie and gives it to person “B”, could person “B” be charged with receiving stolen property under s246 of the Crimes Act? It is also worth noting that the Court made its decision in a hearing where the appellant (Dixon) was not represented by counsel, who would have presented opposing arguments to the Crown’s (and ultimately the Court’s) approach to the central issue in this case. While the Court reached the correct outcome on the facts, it is suggested that this case shows the weaknesses of applying legal thinking developed in the real world to the novel issues raised by the digital world. Ultimately, the law and the legal profession need to understand the nuances of the digital world before we can deal with its unique issues in a fair and consistent manner. References: 1. [2015] NZSC 147: https://www.courtsofnz.govt.nz/front-page/cases/jonathan-dixon-v-r-1 2. Refer http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM330422.html 3. R v Dixon DC Invercargill CRI-2011-059-1122, 18 April 2013 4. Dixon v R [2014] NZCA 329, [2014] 3 NZLR 504 5. R v Misic [2001] 3 NZLR 1 (CA) at [31] 6. Crimes Act 1961, ss248-252: http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM330415.html 7. Andrew Geddis “Dixon v R: An easy case that raises hard questions” (20 October 2015): http://www.pundit.co.nz/content/dixon-v-r-an-easy-case-that-raises-hard-questions 8.Refer to the comments in Prof. Geddis’ blog post and the transcript of the hearing in the Supreme Court: https://www.courtsofnz.govt.nz/from/transcripts/supreme-court-transcripts-2015/SC82_2014JonathanDixonvTheQueen.pdf

 

By Chris Patterson