New Zealand Supreme Court Finds Digital Files are Property in Rugby Scandal Case

On October 20, 2015, the Supreme Court of New Zealand released its decision in Johnathan Dixon v The Queen, in which it found that digital files are “property” within the meaning of New Zealand’s criminal law. The accused had been charged with using a computer system to obtain property “without claim of right” after he obtained CCTV footage which showed a married member of the English national rugby team socializing with a female patron at a bar. The accused attempted, unsuccessfully, to sell the footage to the media before posting it on a video-sharing site.

The Supreme Court concluded that “property” must include digital files through a purposive construction of the NZ Crimes Act, and due to the fact that the CCTV files at issue were capable of being owned and transferred. This reversed the decision of the court below, which found that the files were not property, which decision referred to the Supreme Court of Canada’s 1988 decision in R v Stewart. This Canadian decision held that the offence of counselling theft or fraud did not apply where the intended object of the theft was information contained in electronic records, since the intended act would not result in the deprivation of the victim.

The New Zealand decision raises the question whether a case similar to R v Stewart might be decided differently today.  The Canadian Criminal Code has been amended since that decision, with the addition at section 342.1 of an offence of “unauthorized use of a computer”.