By Livie Jain
How feasible is it to protect the rights of owners by legally recognising the theft of information?
In the recent annual report on Cyber Safety Insights, the country director of NortonLifeLock, Ritesh Chopra has flagged concerns regarding increasing instances of data theft and the complacent attitude of people when it comes to sharing of personal data. In this age of growing scientific temper where we keep inventing means of using and saving data, new means of misusing and stealing that information have also emerged. The scenario where data is stolen from computers is well taken care of by the Information Technology Act, 2000. But the situations involving theft of information when it is stored in places other than digital sources become a challenge for the courts.
The situation becomes wobbly when information from the physical documents is stolen using means like clicking photographs. This type of scenario is not difficult to arise in today’s world. In such cases the physical copy will not be subjected to movement at all, meaning thereby that the elements required for the commission of the offence of theft will not be fulfilled. Then the question arises, whether the information is capable of being considered a subject matter of theft in itself. If yes, then whether theft of information could be dealt with by the existing laws. This post will be analysing the leading cases dealing with somewhat similar situations and why the inclusion of such offence becomes problematic with the existing framework of law by blurring the line between innocent taking and guilty mind.
Theft under Canadian Law
The Canadian law dealing with theft is much broader as compared to Indian Criminal Law. Section 322 of the Criminal Code of Canada defines theft as constituting both mens rea and actus reus. The mens rea requirement is fulfilled when taking or converting is fraudulently and without the colour of right. The actus reus is very broad encompassing deprivation, pledge and dealing with the object in such a manner that it is not restored in the same condition to the owner. The decision of the Supreme Court of Canada in a 1988 judgment in the case of R v. Stewart, deals with the issue of whether information can be considered capable of being stolen, especially when it is not present in electronic form. It is pertinent to note that the Canadian Law relating to theft is flexible to include anything whether animate or inanimate, as the subject matter of theft, but it comes with some riders. It must be capable of being considered as property and must be capable of being converted or taken away.
The court, in this case, ruled that information is not property. But the ruling was not absolute in the sense that, information is not property, only concerning the section of theft and not in general. The court also considered judgment of the Alberta Court of Appeal in R. v Offley, that arrived at a similar conclusion but without discussing the necessity of providing protection to owners of data from information theft. The Court reasoned that it is because of the presence of a clause [322(1)(d)] that allows for an absurdity to arise in case information theft is recognised. It may give rise to cases where it becomes impossible to draw lines between genuine cases of transfer of information and actual stealing. To quote an example from the judgment, situations when one just memorizes the information that leads to a change in its character and is not returned to the owner in its previous form [322(1)(d)], might be considered theft even if the person reading information was innocent.
Following this, the Court held that even though it is wrong, it cannot be given the colour of a legal wrong for it will lead to illogical situations and the present law is not well equipped to deal with those. The Judiciary smoothly passed on the liability of protecting the interest of the owners of information from theft to the Legislature naming it a choice of political judgment to broaden the law. Thus, even when the Canadian Law is broad, treating information as a subject matter of theft is not a plausible solution.
Theft under IPC
Under the Indian Penal Code, the scope of the definition of theft is not so broad. And since penal codes are read strictly, it leaves less scope for any ambiguity to arise. Section 378 in IPC defines theft as when a movable property is taken out of possession and that taking is intending to cause a wrongful gain or wrongful loss. The intention part is pretty clear from the words of the section. But when we consider the possibility of information being a subject matter of theft, it must qualify two tests. Firstly, it must be a movable property and secondly, it must be taken out of possession. But the question arises whether this ‘movement’ which implies physical movement, could be broadened to include the virtual movement of the contents if a photograph is taken.
A judgment of Madras High Court In Re: Thangavelu Odayar of 1957 explains the scope of the word moving. It is stated that since the word ‘moves’ is not qualified anywhere in the section, it would mean same as that in English law where merely removing a thing from its original place would constitute moving. The Court also held that even if the thing is moved an inch it would constitute theft. This presents us with an open-ended definition where information could be supposed to move from the original place to a new one even though it also remains in that place. The definition and deliberations do not prevent such a wider view. But is it sufficient to satisfy this single condition for theft of information to be recognised? The answer to this question seems to be in the negative.
The Court in Birla v Adventz, states that it amounts to theft of information only if the document containing information has been moved from its original place to copy its contents. What is interesting to note is that, before reaching this conclusion, the Supreme Court also held that information is a corporeal property if present in the physical document. By attaching this condition, it ruled out the possibility of information being considered a movable property in itself, thereby leaving it out of the criminal law’s purview. This limitation arises because of the second test which is, it must capable of being taken out of possession of the person against whom the offence of theft is alleged to be committed. Information is abstract in nature and even if one wants to, it can never be removed from someone’s possession. When it is taken by way of a photograph, it merely produces a copy of it and does not remove it from possession. Thus since criminal law requires every element to be fulfilled, indeed, the present law does not encompass theft of information.
Data Theft
The Information Technology Act, 2000 deals with information and data stored in electronic form only. This Act does not include information if it is stored outside the computer system in physical form and is of little use when we consider the theft of information as such. It surely does protect data from being stolen or converted or altered if it is already stored in the computer system [s43 IT Act, 2000]. Therefore, it becomes confusing when we consider the hypothetical situation that we were working with, i.e. theft of information by clicking pictures of documents containing data. This is because when information assumes the electronic form it has already been taken away from the document and what the owner of the photograph now possesses does not fall within the category of stealing or alteration.
Conclusion
Such scenarios if created remain unsheltered in the sense that they fall under none of the existing laws. The court, however, tries to protect the interests of the people by interpreting laws to cover all possible harms as it has done in the case of Birla v Adventz. The letter of the law as it stands today poses a problem of absurd situations arising if the information is included within the definition of theft. Including it would mean essentially blurring the line between innocent taking and dishonest deprivation. Also, it fails to pass the test of being moved out of possession and hence cannot be considered theft. Hence, we are yet to witness a solution that covers cases where information is stolen by clicking pictures. It surely harms the rights of the owner but is yet to be recognised in the world of law.
[The author is a second-year student of National Law University, Delhi.]
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