Data is not property says NZ Court of Appeal

The appeal in Watchorn v R [2014] NZCA 493 continues the Court of Appeal’s narrow interpretation of what is meant by the word “property” in the computer crimes sections of the Crimes Act. The case involves Mr Watchorn, an employee of TAG Oil, downloading what the Court of Apeal describes as “extensive and sensitive geoscience data from TAG’s computer system onto a portable hard drive”.

According to the penultimate appellate authority in New Zealand, that is not property.

In my respectful opinion, that interpretation does not recognise the huge financial and other value of data in this day and age.  I agree with Clive Elliott QC that, if this is our law, it needs to be changed.

Unfortunately also, in this particular case, it would appear that the Crown dropped the ball on appeal.  Faced with clear precedent authority that data is not property, it was still open to the prosecution to replace that claim with a claim on appeal that Mr Watchorn had obtained an illegal “benefit” under section 249 of the Crimes Act.  But, because the Crown failed to provide any evidence whatsoever of what that benefit might be, the Court of Appeal found itself unable to draw any conclusion (albeit one gets the impression the Court would have been prepared to).

As I said, I don’t think a narrow interpretation of property in the context of these computer crime provisions is helpful so it needs to be changed.  There may however be a glimmer of hope for the prosecution of such crimes by focusing instead on access, control and use of data being a privilege, service, … [or] benefit, under section 249.

If that doesn’t work though, I’d have to conclude that this provision is unfit for purpose.

Original post by Rick Shera of Lowndes Jordan – Reposted with permission
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