The arrest and ‘un-arrest’ of Ben Grubb, IT reporter with the Sydney Morning Herald, woke up the recent AusCert conference after the SMH published a story, illustrated with photos extracted from a Facebook page.
The person who extracted the photos from Facebook is at risk of being charged with a cybercrime. Peter Black, senior lecturer at Q.U.T., when interviewed by the Sydney Morning Herald, appropriately commented that security researcher who obtained the Facebook photos, potentially breached section 477 of the Commonwealth Cybercrime Act 2001, if there was an 'unauthorised access' to the computer server on which the Facebook photos were located.
As to why Ben Grubb was arrested then ‘un-arrested’, Queensland police fraud squad head Brian Hay appeared on shaky ground when he was reported as equating receiving an unauthorised photograph from someone's Facebook account with receiving a stolen TV. Underlying this curiously arresting analogy is a question that has never been answered by Australian courts – can a digital work (such as a Facebook photo) be the subject of a theft charge? That is, can Facebook photos be stolen?
The English Court of Appeal once said that “that copyright is probably not a subject of theft”.[1] The court did not have to give a more definite answer as the offence being considered in Lloyd’s case was a conspiracy to steal the master tape of a film in order to use it to create copies. The important element in Lloyd’s case was that the master tape is a physical object, quite capable of being purloined by the copyright pirates that intended to use the master tape to create further copies of the film.
If the copyright in a digital photo is not capable of being the subject of theft proceedings – the question for the Queensland police is how can Facebook photos be the subject of a charge of “receiv[ing] tainted property” under s. 433 Criminal Code 1899 (Qld)? If the digital photos cannot be stolen in the first place it cannot be ‘received’ by Ben Grubb. It all depends on whether the digital photos are ‘property’. The Queensland police have something to run with as the definition of ‘property’ in the Queensland Criminal Code includes “any other property real or personal, legal or equitable, including things in action and other intangible property”.
The Theft Act of the United Kingdom had a similar definition of property, however in the case of Oxford v Moss[2] the U.K. Court of Criminal Appeal rejecting that confidential information in an exam paper was capable of being stolen. The Australian courts do not have to follow those English decisions. We will see if the Sydney Morning Herald want to have these questions answered. While Ben Grubb was ‘un-arrested’ the Queensland police retained his iPad to copy the hard drive – plenty of grounds there to challenge the arrest of Ben Grubb and the taking of Ben Grubb’s property by the Queensland police.
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