Dixon v R: An easy case that raises hard questions

There's a legal saying that hard cases make bad law. But sometimes the opposite can be true - an apparently easy case can lead a Court into some pretty swampy terrain.

The story of Jonathan Dixon doesn't raise much sympathy. He was a bouncer at a Queenstown bar back in 2011. While working there, he observed the English rugby player Mike Tindall - who had just married the Queen's granddaughter Zara Phillips - "cavorting" with a woman on the dance floor. So Dixon went into the bar's computer system, copied a file containing the video footage of Tindall's escapades (which he then deleted from the bar's computer) and tried to shop it to the UK tabloids (who, in an unexpected fit of ethics, refused to pay him). He then got caught and the police charged him with breaching the Crimes Act 1961:

249 Accessing computer system for dishonest purpose

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration

This case then managed to wend its way up to the Supreme Court on a seemingly narrow point of law; did Dixon "obtain[] any property" when he copied the file containing footage of Tindall from his employer's computer system? Sure, Dixon had some other gripes about how his trial was conducted, but it's pretty safe to say that absent this question of law the Supreme Court wouldn't have been interested in the case at all.

Certainly what Dixon did looks a lot like the sort of thing we think of as being "theft". He "broke in" to his employer's computer, he "took something" out of it (and then deleted the file, so his employer no longer had it), then tried to sell that something to a third party. So how is this morally any different to (say) a burglary or other form of theft?

And, in a nutshell, that's what the Supreme Court thinks about the matter (judgment available here). The digital file that Dixon took was something that his employer wanted, that his employer didn't want Tindall to have, and which had an economic value. If something looks like property, sounds like property and gets treated like property, it should be considered property.

Or, as the Court said (at para [39]):

The digital files which Mr Dixon downloaded to his USB stick and then deleted from the reception’s computer were a compilation of sequenced images from the bar’s CCTV system. That compilation of digital files had an economic value and was capable of being sold. While the files from which the compilation was constructed remained on the CCTV system, the compilation contained what was valuable in the full files. Moreover, the compilation had a material presence and altered the physical state of whatever medium it was stored on (eg, computer, disc or USB stick), as is illustrated by the fact that electronic storage space can become fully utilised.

And so the Supreme Court overturned the Court of Appeal's previous decision that the files weren't "property" - although this actually made no practical difference to Dixon, as the Court of Appeal instead had convicted him of breaching s.249(1)(a) on the basis that he obtained a "benefit" when he took the files from his employer's system!

If this were all there was to Dixon's case - exchanging the basis for his conviction from obtaining a "benefit" to obtaining "property" - then it would hardly be worth a mention. But the Supreme Court's decision raises some pretty thorny future questions. I note that the Court tries to be careful about not trying to answer them through this judgment - it emphasises that "the meaning of the word 'property' varies with context" and "in the present case we are concerned with the dishonest acquisition of property from a computer system under s 249(1)(a)" (at para [25]). Nevertheless, the thrust of its judgment means these questions really cannot be avoided.

(Before getting into them, let me also acknowledge that these thoughts were worked out over the course of a day emailing back and forth with Graeme Edgeler ... who may or may not agree with none, some or all of the following and so holds no responsibility for any of it.)

Remember what the Court is saying in Dixon (at least, in relation to s.249(1)(a)). A digital file - the "stored sequence of bytes" - constitutes "property". So if you make a copy of that stored system of bytes in order to remove it from someone's computer system, then you obtain that property. Meaning there are now two instances of the same property - the original file and the copied file, as both contain the same "stored sequence of bytes".

The thing with property is that various things can be done with it, whether obtained lawfully or not. And the Crimes Act has something to say about those who deal with "property" that is obtained unlawfully;

246 Receiving

(1) Every one is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.

Under Dixon's reasoning, the files taken from the employer's computer were "property" obtained by an imprisonable offence (by breaching s. 249(1)(a)). The critical question then is, does the same meaning of "property" apply when we turn to s.246(1) and those who "receive" the digital files? Because if it does, then anyone that Dixon gives, sells or otherwise transfers the copied files to is guilty of breaching s.246(1) - as long as they know or are reckless as to how Dixon got them.

Well, maybe that's not really a problem. After all, let's say Dixon stole some printed still photos from the bar's video camera and offered them for sale to the newspapers. There would be no issue with anyone who buys the photos off him being charged under s.246(1), right? So why should his passing over a digital file containing the photos be any different?

But now let's try another thought experiment. Let's imagine that instead of offering the files for sale, Dixon puts them up on a website for others to download (along with an account of how he came by them). And a whole lot of people flock to the site and download the file. By doing so, have each and every one of those individuals now received "property ... obtained by any ... imprisonable offence, knowing that property to have ... so obtained" - thus making them liable to (at least) 3 months imprisonment? Because, remember, under the Dixon approach, making a copy of a digital file - the "stored sequence of bytes" - constitutes obtaining property.

Whereas, if Dixon were to have taken printed still photos from the bar's video camera, scanned them into electronic form and put them up on the internet, it would not be a breach of s.246(1) for anyone to view, print, download or otherwise access them. Why not? Because you would not be receiving the stolen property - the printed still photos - but rather a copy of them that contains the same information. And the Supreme Court is very careful to say that "information, even confidential information, is not property" (at paras [23]-[24]).

Now let's step matters up a notch. Let's say some white hatted hacker gets hold of a whole lot of digital files showing that the Government or some large corporate enterprise - hell, let's even make it a union! - is up to no good. And she passes those files on to Wikileaks to disseminate for the public good. And Wikileaks makes them available on its website for anyone to download. If you go to the Wikileaks website and do so, have you breached s.246(1) by receiving a copy of the "stored sequence of bytes" that make up the original digital file ... which is, according to the Dixon approach, a form of "property"?

As compared with a situation where the white hatter takes the digital file to a newspaper, which prints it all verbatim for its readers to see in print. The newspaper (or, rather the journalists who get the digital files) may be vulnerable under s.246(1), but you as a reader can rest easy as your copy of the paper does not contain any property obtained by an imprisonable offence. Because on the Dixon approach the information contained in the digital files is not property ... just the files themselves.

Which then gets us into other tricky areas. Let's say the white hatter takes the digital files to the newspaper. How can it hold onto those files without potentially breaching s.246(1) by receiving property obtained by an imprisonable offence? If the files were in a physical form - paper documents or the like - then the answer is easy. The newspaper can photocopy them, because it is only the original paper document that is the relevant property; remember, "information, even confidential information, is not property". But digital files? If the paper copies the digital files, then it ends up with the same "stored sequence of bytes" ... which according to the Dixon approach is still property obtained by an imprisonable offence!

That's without even getting into the question of copyright infringement ... because note s.246(2):

For the purposes of this section, property that was obtained by any act committed outside New Zealand that, if it had been committed in New Zealand, would have constituted an imprisonable offence is ... to be regarded as having been obtained by an imprisonable offence.

And then consider this provision in the Copyright Act 1994:

131 Criminal liability for making or dealing with infringing objects

(1) Every person commits an offence against this section who, other than pursuant to a copyright licence,—

(a) makes for sale or hire...

an object that is, and that the person knows is, an infringing copy of a copyright work.

While noting that a breach of this provision can attract a jail sentence of up to 5 years.

Now think on this. You (or a hypothetical you) go to an offshore based website and buy a digital copy of a recently released Hollywood movie that you know (or, at least, are reckless about) has been made in breach of copyright. On the Dixon approach, by doing so have you not just received "property" - a copy of a "stored sequence of bytes" - that was obtained by an imprisonable offence? Making you liable to a 3 month long prison sentence ... or longer, if you happen to build up a bit of a library of such files over time?

I really don't know how any of these questions will be answered. And as I say, the Supreme Court doesn't claim to be answering them in Dixon - it says it is only talking about what "property" means in terms of s.249(1)(a). But now the really big question is, does that definition of "property" carry over into other sections of the Crimes Act - and with what consequences? Or, if it doesn't, why not?

Lawyers, start your engines.