Should the Law of Theft Extend to Information?

Published date01 August 2005
Date01 August 2005
DOIhttp://doi.org/10.1350/jcla.2005.69.4.349
Subject MatterArticle
Should the Law of Theft Extend
to Information?
Anna Louise Christie*
Abstract This article discusses whether the criminal offence of theft
should extend to include information or should remain limited to corpo-
real property. It considers the inherent problems in satisfying the requisite
elements of the offence of theft in both Scots law and English law and
assesses whether information is classif‌iable as property for the purposes of
theft. The arguments for and against the proposition that information
should be capable of being stolen are examined and a case for more
comprehensive protection of information through criminal law is put
forward. The article f‌inally comments on the probability of legislative
reform to remove the legal obstacles and compares the UK position to that
of other jurisdictions.
Sir Edward Boyle said in the House of Commons on 13 December 1968,
‘Is it not too much to say that we live in a country where, in Mr
Campbell’s words, the theft of the boardroom table is punished far more
severely than the theft of the boardroom secrets’.1This article proceeds
on the basis that there is no offence of ‘theft of the boardroom secrets’,
and therefore, theft of a secret as envisaged by Sir Edward Boyle is not
in reality punishable at all.2
There is considerable debate over whether the law of theft should be
restricted to corporeal property. This lacuna in the law may be unjust as
it means that corporeal items of minimal value are capable of being
stolen yet valuable information escapes legal protection. This anomaly is
exacerbated by the rapid proliferation of information technology in
society, which has the paradoxical effect of making information increas-
ingly valuable, but yet more accessible to others. Wrongdoers are seen to
gain immunity from both the civil and criminal processes. However,
there are problems in bringing information within the traditional def‌ini-
tion of property. Moreover, criminal law may not be the appropriate
forum through which to afford protection due to problems associated
with criminalisation.
The current position
Theft in Scotland is def‌ined as conduct comprising appropriation which
deprives the complainer temporarily or permanently of possessory
* University of Aberdeen; e-mail Annalc123@aol.com.
1 This speech was given during the Second Reading of the Industrial Information Bill.
The Bill was not supported by the Government and therefore was not passed as
law. The debate was adjourned and not resumed. The Theft Act 1968 came into
force 18 days after the debate, but did not include provisions which criminalised
the misappropriation of trade secrets. Mr Alan Campbell QC wrote to The Times a
year previously on this topic.
2 Although there may be circumstances where a civil claim could arise, it is doubtful
that this would be characterised as ‘punishment’ and would more be more
accurately described as ‘compensation’.
349

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