E-mail Injuncted
Excellent. National has obtained a High Court injunction against publication or distribution of the stolen e-mails.
The injunction covers both:
“those persons who gained unauthorised access to the plaintiff’s computer system and took copies of email messages (“the copied emails”) stored on the plaintiff’s computer system and “those persons who have physical possession of the copied emails or any part of them, whether in hard copy or as a record on a computer, without the consent of the plaintiff.”
And they are prohibited from:
(i) Copying (including by placing on a web site);
(ii) Issuing to the public;
(iii) Broadcasting or including in a cable programme service;
(iv) Making an adaptation of;
(v) Authorising any of the actions referred to in (i) to (iv)
And even better:
the first and second defendants by themselves, their servants or agents or companies under their control be and are hereby restrained from communicating to any other person the contents of copies of emails in their possession, power or control,
So if (for example) Winston whispers any more material from the e-mails to Helen, for her to threaten Brash with, he will be in breach of the court order.
And finally:
All copies of emails in the possession, power or control of defendants served with a copy of these orders, which emails were sent by the plaintiff to third persons or by third persons to the plaintiff, which copies of emails were not provided to the first or second defendants by either the plaintiff or by a third person who, in relation to any specific email, was the sender of that email, shall be placed forthwith in the custody of the Court by being lodged with the Registrar of the High Court at Wellington
Hopefully the defendents will obey the law and return the stolen e-mails, and this may also assist the criminal investigation into who actually stole them.
November 17th, 2006 at 3:33 pm
Wow, talk about surpression of information. How does this help catch the culprit? I presume the emails can all be read out under parliamentary privilage, so pressumably it is all about keeping the rest of us in the dark.
November 17th, 2006 at 3:38 pm
What have they got to hide?
November 17th, 2006 at 3:41 pm
DPF – return of the illicit emails is only required after service of the order is effected against any individual
November 17th, 2006 at 3:42 pm
sonic, dunno. Could it be, gasp, some policies!
November 17th, 2006 at 3:45 pm
Come on emailsagogo, not more insane conspiracy theories!
November 17th, 2006 at 3:48 pm
That is a pretty comprehensive order.
For that to be breached you would have to have someone that
1: Had a complete disregard for the law
Or
2: Felt secure in the knowledge that no prosecution would be brought. (prima facie anyone?)
3: Was willing to change the law retrospectively so that they could make the breach legal.
Its a good thing that Brash’s opponents are above all of that type of behaviour.
Tui anyone?
November 17th, 2006 at 3:51 pm
Sonic – Nothing to hide but everything to defend: Privacy.
I’m sure you have nothing to hide, and I’m equally sure that you would be incensed by having your personal life & professional business plastered all over the internet as a result of theft.
November 17th, 2006 at 3:51 pm
I love this bit as well
“All copies of emails in the possession”
As if there are a limited number of copies of an email.
“Oh sorry your honour I just accidently sent the mail to everyone in my address book, including lots of people overseas who are not covered by this injunction, silly me”
It is also great timing from National, is there anyone who reads this who will not ask “I wonder what they are trying to hide” and is there any Sunday newspaper editor who will not be telling his journalists to write a story on this right now?
November 17th, 2006 at 3:57 pm
Note the term ‘copied’ as opposed to your persistent ‘stolen’.
And what about Parliamentary privilege, I suggest Peters or whoever wait until one of the last sessions before the next election and simply let fly.
November 17th, 2006 at 3:58 pm
Funnily enough Andrew I’m not trying to become Prime Minister.
Mind you judging from his recent actions neither is Mr Brash!
November 17th, 2006 at 4:11 pm
Sonic as always is trolling. Don’t you love the irony of someone who refuses to even post under his real name, thinks that anyone who doesn’t want all their emails in the public domain is hiding something.
And yes Winston could read them out under Parliamentary Privilege. But using privilege to deliberately breach a court order is very rare and a hazardous thing for an MP to do in terms of public opinion.
November 17th, 2006 at 4:22 pm
ah sonic turns up running labour talking points, what a surprise!
Never mind david, bears sh*t in the woods and trolls troll. Look on the bright side, its nearly 5:00, sonic knocks off soon (wouldnt want to go against union rules now).
I wonder if we could hypothesise a theory of sonic interventions? the more posts per hour on a topic, the more frantic the government positioning?
November 17th, 2006 at 4:26 pm
Funnily enough Andrew I’m not trying to become Prime Minister.
Excellent. Notwithstanding the disappointment felt by hedgehogs everywhere, we’ve now established that you have nothing to hide. So how about posting your real name, address, bank account numbers, PIN numbers, email logins, investment fund details and kennel club membership details up here for us? Not keen? We understand.
Expect to give others the same right to privacy that you want for yourself.
November 17th, 2006 at 4:30 pm
the deity formerly known as nigel688,
Every time I read a Sonic post I get this chant ringing in my ears
“Baa, Baa, Four legs good, two legs bad
Baa, Baa, Four legs good, two legs bad
Baa, Baa, Four legs good, two legs bad
Baa, Baa, Four legs good, two legs bad”
November 17th, 2006 at 4:54 pm
David, you know Sonic. Ask him to reveal all or threaten to leak what you know about him here at Kiwiblog – slowly & painfully over several months. A remarkable parallel with the use of information from stolen emails in parliament – yes?
I know you’re above this, but perhaps you could ideologically lurch to the left… and.. well.. it would be ok then.
November 17th, 2006 at 5:02 pm
There is an interesting question of privilege here. Supposing the emails were read out in Parliament? The Court does not have jurisdiction over things said in the House…it goes back to the Bill of Rights.
November 17th, 2006 at 5:08 pm
crasster – it’s not that interesting a question of privilege – it’s obvious.
Now this – http://www.scoop.co.nz/stories/PA0611/S00274.htm – gives rise to an interesting question of privilege… how constrained is the Privileges Committee by the rights of free speech under the NZ Bill of Rights Act? etc.
November 17th, 2006 at 5:13 pm
Beat me to it, Graeme. What are your thoughts on the Robson/Dunne issue?
November 17th, 2006 at 5:34 pm
Robson clearly suggested Dunne’s voting was compromised by alleged connections to outside lobby interests. So, it’s within the purview of the privileges committee. That being said, what’s the Privileges Committee going to do about it? Ask Robson to apologise and end it there? Even though the House recently resuscitated a long dead ability to fine, when it pinged TVNZ, I am not sure the slight against Dunne is significant enough to warrant such an action.
November 17th, 2006 at 6:01 pm
Within the purview of the privileges committee certainly, however, in 1990 Parliament enacted the New Zealand Bill of Rights Act which provides:
“This Bill of Rights applies only to acts done-
(a) by the legislative, executive, and judicial branches of the Government of New Zealand.”
Taking this into account, and analagously with the decision of the Court of Appeal in Lange v Atkinson, the privileges committe may have an obligation at law to read down the provisions in the standing orders to ensure free speech is given the fullest effect.
I’d note too that the standing orders aren’t an “enactment” for the purposes of s 4 of the Bill of Rights and aren’t protected by the Parliamentary supremacy that that section recognises.
The concepts of contempt of Parliament and contempt of Court are quite closely related. Indeed among the matters on which Nick Smith was found to have committed a contempt of court were “intemperate, derogatory and unfair remarks … [that] assault the authority and integrity of the Family Court and the fairness and legitimacy of its decision.”
The idea that one shouldn’t undermine the courts by one’s intemperate words is similar to the idea that one shouldn’t seek to undermine Parliament in a similar way. Both could do with a re-think in light of the heightened emphasis we now place on free speech.
November 17th, 2006 at 6:02 pm
Is this injuntion going to be served on anyone eg Clark and Peters.
I would like to see them squirm!
November 17th, 2006 at 6:05 pm
Is this injuntion going to be served on anyone eg Clark and Peters.
I would like to see them squirm!
November 17th, 2006 at 6:08 pm
Is this injuntion going to be served on anyone eg Clark and Peters.
I would like to see them squirm!
November 17th, 2006 at 6:15 pm
Is this injuntion going to be served on anyone eg Clark and Peters.
I would like to see them squirm!
November 17th, 2006 at 6:17 pm
Is this injuntion going to be served on anyone? eg Clark and Peters.
I would like to see them squirm!
November 17th, 2006 at 6:18 pm
Well, let’s apply the Sonic Standard. If I stand for public office, then it’s a matter of entirely legitimate public interest if someone decides to break into my home, steal my private diaries and copies of my correspondence, and selectively leak it. After all, if I’ve got nothing to hide what possible objection would I have?
I also had a nervous breakdown and attempted suicide when I was fifteen, and spent a week in the psych ward at Palmerston North Hospital. I’ve always been candid to a fault about my history of mental illness, but that doesn’t mean I wouldn’t have a problem with my private medical records entering the public domain.
November 17th, 2006 at 6:18 pm
Graeme…I was thinking about the Bill of Rights 1688 which gives parliamentarian’s absolute freedom of speech and marks out parliamentary speech from purview by the courts.
November 17th, 2006 at 6:30 pm
Crasster – I’m aware of that. About that, you are absolutely correct – it is beyond doubt – which is why I considered it a not particularly interesting question of privilege.
November 17th, 2006 at 7:58 pm
As promised – the delivery
Does David, or Brash or any National Party member really think this injunction will save them?
Don’t they understand this plays further into the strategy.
Don’t they get that the injunction could be broken by privilege of Parliament, or a tabling in a Select Committee
Don’t they understand that this was exactly what was wanted?
Do they really think this happened in isolation? Don’t they see this is the tip of the iceberg, the beginnings of the downward spiral, the top of the slide?
As I said months back – Sit back and enjoy the slide
November 17th, 2006 at 8:37 pm
Obviously slide, you know what you’re talking about…but I have no idea what the hell you’re talking about. It’s all a bit…how can I put this politely…cryptic.
November 17th, 2006 at 8:51 pm
David, regarding your “breaching a court order under privilege is hazardous in terms of public opinion”.
Firstly, assuming it’s WP, expect him to pull all his political tricks out of the hat in the lead up to the next election, he may have nothing to lose.
Secondly, if the contents are sufficiently scandalous (politically not personally) then I doubt many would punish him for releasing them.
Finally, the most noise I have heard about these emails is from yourself and one other with links to the party, when combined with the injunction it does make one curious. Batten down the hatches if you must, because in the electronic age it is naive to believe documents with ever increasing interest will stay underground when already in an unknown number of wrong hands.
November 17th, 2006 at 8:53 pm
Nothing in the court order stops the publication of the material in parliament.
November 17th, 2006 at 8:54 pm
If someone wants to table them all in Parliament, then they can do that. However the saga will then be over. It is unacceptable to have Govt Ministers with stolen emails threatening to release them over time at their political convenience. Winston and co want to be ale to save them for the next campaign. They won’t be able to.
And remember that the court order makes it an offence to even possess the e-mails once you have been served.
November 17th, 2006 at 8:57 pm
crasster, slide’s saying that labour are just finding their stride, that national are on the ropes and we’re in for decades more glorious socialist paradise. slide’s saying that the right don’t know what the left are doing. slide’s is heaven. i like it when other are blissfully happy. makes me all feel warm inside.
November 17th, 2006 at 8:59 pm
David, you’re correct about the possibility of tabling or even trying to read these in the House…which is why I had raised it earlier. But, as you know, privilege is for the House not individual members and generally leave would not be granted to table such a thing and Speaker should stop any attempt to abuse the privilege of the House and contempt courts. There should be sufficient deferrence towards the court’s jurisdiction that most people in parliament would find such a move by a Member to be repugnant.
November 17th, 2006 at 9:03 pm
Look forward to there publication on mytube.
May be the could set them to music
November 17th, 2006 at 9:04 pm
Look forward to there publication on mytube.
May be the could set them to music
November 17th, 2006 at 9:06 pm
James said: Batten down the hatches if you must, because in the electronic age it is naive to believe documents with ever increasing interest will stay underground when already in an unknown number of wrong hands.
I agree with James here. The very freedom that makes kiwiblog possible similarly removes control of content from the author (or intended recipient) once published. Am much as I support the intent of the legislation my instinct is that it will be an ineffectual muzzle.
November 17th, 2006 at 9:11 pm
Opps, drop legislation, insert injunction
November 17th, 2006 at 9:28 pm
Such a bizarre thing to do.
Proving a copied email was ‘stolen’? Can’t see how that would work. How would you even know if you were in possession of one of them until the contents are publicly known? Toothless posturing, I think.
One thing is certain. Any email that this injunction actually applies to will find it’s way into the public arena. The internet makes it a certainty. Some blogger abroad will do it, and people will post comments with it, and so on, in a dirty little Chuck Bird kind of way. There’s just too many holes to plug up.
Don’s only hope is that his secrets are too lame to care about.
November 17th, 2006 at 9:58 pm
But first you have to be served with the Injunction – don’t you????
November 18th, 2006 at 12:48 am
Please drop it DPF. The emails are not stolen, and no-one has any evidence that any theft is involved whatsoever.
You have to be served a copy of the injunction to be required to deposit the emails with the High Court at Wellington, but not it would appear so as to prohibit you from doing anything public with them if you have them.
Now, if I’ve been forwarded one of these emails to a gmail account, and am served with the injunction, am I required to deposit google’s servers with the High Court? Just asking…
November 18th, 2006 at 7:53 am
I don’t know why Don is bothering with the injunction. It seems like the sort of heavy-handed action Helen will employ. Anyway, according to the Dom editorial the other day, Don’s not going to be the Nats leader for much longer, as apparently John Key already has the numbers to roll him as leader.
Of course Helen’s worst nightmare come 2008 will be to have John rather than Don as the Nats leader. I wonder if she’s secretly jumping for joy in Hanoi about news of the injunction? ; )
November 18th, 2006 at 8:10 am
Graeme – of course they were stolen – by process of elimination. Just if you come home and find the TV missing – once you check your kids haven’t taken it, you deduce it was stolen.
I have *no* doubt they were stolen.
November 18th, 2006 at 8:58 am
DPF – my understanding would be that it would be more like come home to find the TV still there but someone has taken photos of the TV…
If Dr Brash still has the emails in question, there can be no question that they were NOT stolen.
It might be illegal – hacking, unauthorised access to a computer etc., but if Don ain’t missing somthing he used to have it’s not theft.
November 18th, 2006 at 9:02 am
I doubt this injunction will have any effect. It’s still legal to describe the contents of the emails without actually publishing the text.
And – as DPF doubtless knows – the highly salacious story of HOW the emails were stolen will be far more damaging to Dr Brash and his party than their content could ever be.
November 18th, 2006 at 9:21 am
Graeme – are you saying that a report can not be stolen for example?
Danyl – the story of how they were stolen will not damage National at all I suspect. It might well damage those who did the stealing and those who received the emails.
November 18th, 2006 at 9:40 am
DPF – No I’m not. A physical copy of a report owned by someone can be stolen. They had the report, and now they don’t.
Email is different. Someone breaks into Don’s Office and downloads his inbox to a jump drive. Don still has the emails so its not theft. Illegal perhaps, but not stealing. Perhaps accessing computer for dishonest purpose under s 249 of the Crimes Act (7 yrs) or accessing computer system without authorisation (2 yrs).
Instead of leaving, the person then deletes all the emails. Don no longer has the emails, but still not theft. The same unlawful access under s 249 (or s 252) coupled with a second offence of damaging or interfering with a computer system under s 250.
Now it is possible that the person printed the emails in Don’s office, this could be theft of the paper/toner, but this scenario seems less likely to me – with the likely number of emails involved I’d have thought that printing them all would take too long, and going through them one by one before printing wouldn’t be much faster. Getting the whole lot seems a better option for the criminal.
A further example of something that’s not theft. I look over your shoulder while you’re entering your on-line banking password. I later log on as you and then move money from your account to my account in the same bank, and with that cash as soon as possible. It might strike you as odd, but this is categorically not theft.
November 18th, 2006 at 10:02 am
The emails may have been printed out, and hence stolen. The fact someone else may be able to reprint them out applies to a report also.
In any case I use the term stolen to indicate taken illegally in a way which breaches the Crimes Act.
November 18th, 2006 at 10:11 am
If these emails were printed out and sitting on his desk, and were then unlawfully taken, then yes, they can be ‘stolen’.
The story (I for one) have been fed is that a person accessed his computer and copied them, this cannot be theft, yet you persist.
November 18th, 2006 at 10:21 am
Point taken though David, fair enough.
Curiously, I imagine (without much consideration) that anyone in possession could be guilty of receiving if they knew the emails were obtained in a manner which would amount to a crime under the computer access provisions. Given the new wider definition of ‘property’ that is.
November 18th, 2006 at 10:59 am
Of course, the distinction is rather important however, especially in situations as you’ve previously claimed, that those in possession of the emails are guilty of receiving stolen property.
Receiving can apply to situations where the property received was not stolen, but otherwise obtained by a crime, but it is significantly less clear that it would apply to someone in possession of an email copied to a jump-drive for example.
In my example above, someone whom I gave some of the money I obtained by hacking into your on-line banking would be, with the requisite knowledge, guilty of receiving. I would be very surprised if someone whom I gave a copy of the particular string of 1′s and 0′s that make up the copy of Don Brash’s inbox I copied onto my jump-drive could possibly be said to have received property obtained by crime (it’s possible, but I don’t see it being likely).
November 18th, 2006 at 11:50 am
Almost 24 hours later and still none of the super sleuths here are any closer
November 18th, 2006 at 12:08 pm
It appears these emails are a gross intrusion into Dr Brash’s private life and he is fully entitled to protect them for his sake and the people who communicated with hi, For Peters to threaten to release material that is stolen I think is reprehensible. I hope he gets done with comtempt of court if he presses this further.
November 18th, 2006 at 12:45 pm
Graeme, why do you think the contents of an inbox would be unlikely to be found to be property for the purpose of receiving? Interpreted in line with the purpose of receiving- being to stop people getting their filthy mits on unlawfully obtained ‘things’- I see no reason for a restrictive reading of property in that case, especially given the widening of ‘property’ in the recent C Act amendment, no?
November 18th, 2006 at 12:58 pm
You’re going to have to point me to that change, I’m afraid james.c – couldn’t see it in the Crimes Amendment Act 2006 or 2005.
On the jump-drive I’m assuming was used (it would work with other storage too) the electrical signatures, all those 1′s and 0′s, are owned by the person who ‘stole’ the emails. ‘Stealing’ the emails merely altered the order in which those switches (clearly owned by the ‘thief’) were turned on or off. The property, as I see the definition (until you point me to the new one, at least) at all times belonged legally to the owner of the jump-drive.
November 18th, 2006 at 2:01 pm
Even if the matter was to be tabled in the House, or referred to in Parliament, the injunction would entirely muzzle any broadcast or publication etc of what was said in Parliament, in terms of the injunction.
Just as in defamation, it is no defence to claim that one was simply reporting what was said under privilege.
Likewise, the injunction is unable to be served in Parliament, so, technically speaking, if John Doe were to reveal himself “by his works” to be a parliamentarian he could continue to do so until the injunction is served, which could only be when (s)he exited Parliament.
November 18th, 2006 at 3:02 pm
DonKey – I hope you’re not a lawyer.
It is most certainly a defence to a defamation suit that you were reporting what was said under privilege – the defence of statutory qualified privilege (s 16, and sch 1 of the Defamation Act 1992).
November 18th, 2006 at 3:39 pm
Does the act of using parliamentary privilege mean that one is in breach of the court order because to do so means they were in possession of the emails while walking to parliament?
November 18th, 2006 at 3:59 pm
The injunction doesn’t generally prevent possession of the emails.
Possession of emails will only be in breach of the order if, after having been served with the order, the person served doesn’t lodge their copies with the High Court at Wellington.
November 18th, 2006 at 4:21 pm
Nowhere in this thread so far have we discussed the competing values that the High Court will have to weigh up should the author of this supposed book challenge Brash’s interim injunction. As far as I can tell, they’ll be weighing up Brash’s right to privacy with the public interest value of the emails’ publication.
DPF: Are you really arguing that, no matter what the content of the emails, the High Court should find this weighing up in Brash’s favour? I could think of several circumstances (e.g. if the emails held proof of Brash doing something highly politically immoral – maybe telling his advisors that he was going to lie to the public about his policy intentions in order to get elected – or illegal) in which I think the High Court ought to find in favour of the public interest value.
DPF, are you really saying that in your view privacy trumps public interest every time? Wouldn’t this rather constrain the work of the Opposition (and the media), which both thrive on the leaking of information (leaking being, by definition, the unauthorised release of information)? If someone in the PM’s office, without her authorisation, accessed her emails and leaked them to you, are we really meant to believe that you would return them without question rather than hand them to National’s Leader’s Office?
November 18th, 2006 at 4:23 pm
Graeme Edgeler: you seem on top of the legal ins and outs of this issue. Do you have a view on what the competing argts would be, should the author of this supposed book challenge the interim injunction in the High Court? Are they as I have guessed above?
November 18th, 2006 at 4:41 pm
Unenforceable silliness.
How will J&J Doe know if they have these emails? How will anyone else know? How will they prove it?
Once they know what it is the court is serving them about, hiding them, whilst remaining in possession, is child’s play. Illegal, sure, but the messages referred to were by definition illegally gotten in the first place, if they were gotten at all.
Anyone who received them legally is fine, and there are quite probably real difficulties proving that didn’t happen.
And publishing them outside of NZ is similarly child’s play. How could you prove when the transmission to a foreign location happened?
I’m sure the Don’s team know this – which makes me think this is basically a publicity stunt, a way of asserting that some crime happened publicly, without any evidence.
Then again, maybe the thief, if there was one, is really dumb. The kind of dumb that would allow themself to end up in the position that Brash finds himself in. Seems pretty unlikely to me.
November 18th, 2006 at 4:50 pm
I am surprised that David Farrar is welcoming this.
Would he welcome suppression of details contained in leaked government documents as well?
Like or not, Don Brash is a public figure. If internal National party documents get leaked ,in a free society unless it compromises national security then there can be no reason for suppression.
Imagine the howls, the outraged squeaks from David Farrar and his chorus if Helengrad had attempted such a similar tactic?
They would be wailing dictatorship faster than you could say “North Korea”
November 18th, 2006 at 5:31 pm
The real target is Labour even mentioning they exist.
So that anything about Don that he wants kept a secret , like where he goes for a holiday can be said to be ‘in the emails’ so its a breach of the injunction to breath a word. Of course much more thans Dons holiday plans has been revealed in past months. Saying what those are is now a breach of the injunction.
Dons lawyers must have waited till they got a patsy judge on duty for exparte injunctions.
November 18th, 2006 at 5:46 pm
A national party MP recieves an email from a mole in a department saying Philip Field has done XXXXX. Now that email is not addresed to the informant.
The email cant be used since it was stolen according to the NP code of conduct. But of course the information can still be used to ask a detailed question which makes it public. If there is a denial they are stuck. Or will they make the information known by a statement in parliament and abandon the principle of the secrecy of emails. Can pigs fly
November 18th, 2006 at 5:50 pm
Email 101. Don’t ever think your email is private, ever. The digital world is open all hours and cached somewhere for all time.
This simply shows how one should always understand the tools one is using, never before has the “paper trail” been so accessible to so many for so little money. Is this Watergate, I don’t think so but I do think that there are alot of people who are very nervous right now because they thought email was like snail mail.
Always remember, there is a Server somewhere with your every word stored on it. 101.
November 18th, 2006 at 6:41 pm
What’s this “injuncted” rubbish? The verb of “injunction” is “enjoin”!
November 18th, 2006 at 6:42 pm
What’s this “injuncted” rubbish? The verb of “injunction” is “enjoin”!
November 18th, 2006 at 8:03 pm
If your email on your computer has been accessed by a third party without your knowledge (eg via a trojan horse virus), then the perpetrators probably can only be charged with fraud (where internet charges overlap). They’ve also probably breached the Privacy Act somewhere.
November 19th, 2006 at 11:58 am
values – you’ve largely got it right – quoting from the judgment of Gault P and Blanchard J in the Hosking decision:
“In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy:
1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.”
and importantly:
“[there is] a defence enabling publication to be justified by a legitimate public concern in the information.”
If the information in the emails is so innocuous that no objective person in Dr Brash’ position could be annoyed with its release then there won’t be a breach of his privacy and thus no call for a continued injunction.
As you observe there is a public interest defence, and it’s basically an exercise in weighing up the two competing societal interests – the interest in protecting individuals’ privacy and the interest in the public in knowing whatever information is contained in the emails.
If the latter outweighs the former, the injunction won’t be continued.
The weighing exercise might take account of the fact that as a person voluntarily in the public eye Dr Brash might have a lesser expectation of privacy in certain circumstances than Joe Average (analagously with how David Lange was found to have a slightly lesser expectation in the protection of his reputation in Lange v Atkinson).
The particular quality of the information will also be a factor – if it’s strict private life, the privacy interest will be stronger (and the legitimate public interest lower) than if it’s emails confirming NZ’s anti-nuke legislation will be gone by lunchtime.
Ultimately though, it does come down to a question of whether the information in the emails is of sufficient legitimate public interest to outweigh the breach of privacy. And who knows the answer to that?
November 19th, 2006 at 5:47 pm
Hi Graeme, information cannot be stolen as there can never be intent to permanently deprive, however could it be received? (‘any thing in action’, assuming DB has some right over the particular 1 and 0 sequence in his inbox). That way the property would rest not just in the physical drive (which is owned by the ‘thief’), but in the information itself. Copyright breaches are not theft (contrary to DVD warnings) however on the face of it I can see no reason why a pirated DVD could not have the illegally obtained information received by another. In my opinion the distinction between the information and the medium the information it is contained on is only crucial for theft, not receiving, what are your thoughts? (leaving aside the lack of requisite knowledge in our example)
cheers, james
November 19th, 2006 at 8:30 pm
james.c for something to be receiving, the thing received must not merely have been obtained illegally but criminally.
Illegally copied copyrighted material is quite often obtained legally (e.g. someone buys MS Windows, then cracks it, copies it, and sells knock-offs). Those who obtain it subsequently might be obtaining it in breach of copyright, but aren’t “receiving” property obtained criminally.
If the intellectual property that is Don Brash’s inbox can be considered property for the purposes of the receiving offence in the Crimes Act then it could probably be received for that purpose (i.e. it would have been obtained not merely illegally (in breach of copyright), but also criminally (be that by unlawful access of a computer system, or breaking and entering etc.))
November 19th, 2006 at 11:08 pm
Cheers Graeme, I cannot see why his inbox could not be property for receiving (leaving aside any issue of it being the inbox not the outbox), the amendment to ‘property’ was in 2003, and (off hand) was to accomodate the modern concept of intangible property, thus would fit this scenario.
November 20th, 2006 at 1:25 pm
I dunno… it all smacks a bit of the “missing 18 minutes” of the Watergate tapes. Which will draw most folk to the conclusion (right or wrong) that whatever’s in those emails must be awfully damaging…
If (and this may be a big IF) Don’s still leader come Election 2008 I’d be willing to bet a website pops up in Lithuania or wherever, the URL for which will spread like wildfire through the NZ net-savvy community. Or, even if that didn’t happen, there will be all sorts of inferences and innuendos as to what lies hidden in Don’s very own Apochrypha.
Remember, the hint that someone has ‘something to hide’ is often more damaging than the actual thing they are hiding.
November 20th, 2006 at 4:58 pm
james.c – I think you’re right that the amendment to the definition of property in 2003 was to expand the definition to include things like intanible property, but I’m still not sure it applies in this case.
The intangible property in Dr Brash’s sent items’ folder is potentially his copyright in the rightings. This copyright did not pass to the receivers of electronic copy of his email – it cannot be said that they received that property.
An example might show why I’m uneasy with the idea that this was an illegal receiving of criminally obtained property. I steal a book from a library (and you know this), and give you a photocopy of that book – I do not believe that a court would consider this receiving. And I consider this quite a good analogy (in the sense that I consider both would be ‘solved’ the same way – whatever that is).
For me the extension of property (incl. for the purposes of receiving) is to cover situations where intangigle property is actually taken/received.
E.g. Bob’s bank advances him a small loan secured against his household furniture. They register this interest on the personal property security register and get in first (so their interest trumps subsequent interests); I loan Bob money as well, getting the second-ranked interest against his furniture on the PPSR. I hack into PPSR and switch the dates of my security and that of Bob’s bank, so that mine is the oldest and first-ranking. I sell Bob’s debt to someone else who knows I’ve done this, and they seek to foreclose, taking Bob’s furniture to cover the loan and leaving the bank short on it’s money. Criminally obtained intangible property (the first-ranking security over Bob’s furniture) was actually received by the person I sold the debt.
This hasn’t happened here. Brash’s intangible property in the emails ha stayed with Brash throughout. I’m not sure that any intangible property has been received by the person in receipt of Brash’s emails, least of all if they obtained a copy of a copy of them (e.g. the hacker broke into the computer, stored them on a jump-drive, then copied them to another computer before writing them to CD to give to whoever has them now).
November 20th, 2006 at 7:56 pm
The example you give is instinctively attractive, in that it sits more comfortably with the perceived purpose of receiving. My only query with it would be that you seem to want to accomodate an intent to permanently deprive into receiving.
I suggest that the re-creation of property that does not deprive the owner at all (possibly only possible regarding intellectual property), yet at the same time being criminally obtained, could at least possibly amount to property that could be received. In other words I can see nothing which obviously stops a copy of information from being received, notwithstanding information being unstealable.
November 20th, 2006 at 9:19 pm
I’m not entirely sure – I think what I might be arguing is that a copy of the emails isn’t property.