NSW law anomaly not repeated in NZ: IT lawyer

A seemingly bizarre situation in Australia in which an employee with access to data kept by his employer can't be criminally charged after allegedly stealing that data wouldn't arise here, says a local lawyer.

A seemingly bizarre situation in Australia in which an employee with access to data kept by his employer can't be criminally charged after allegedly stealing that data wouldn't arise here, says Mark Copeland, president of the NZ Society for Computers and the Law.

"If someone carried out the same actions in New Zealand, there would be a raft of legislation they could be prosecuted under," says Copeland, of Auckland firm Lowndes Associates.

"It could be a case of wilful damage, entering with intent, burglary or theft under the Crimes Act.

"If you wilfully destroy property, that's an offence and New Zealand courts have held that data in a computer is property."

Janteknology, a former New South Wales security software distributor, stopped trading after what managing director Glenn Miller calls "a major internal security breach" involving an employee removing vital data from Janteknology computers.

However, even though the employee is believed to have admitted doing so, they are unable to be charged under New South Wales law, says Bruce van der Graaf, of the state's police fraud squad e-crimes unit.

"In New South Wales, if a person has lawful access to a system, they can't be charged with unlawful access.

"If someone goes in and trashes a system to which they have lawful access, there's a possibility of charging them [with wilful damage], but in a case of simply copying the data, that doesn't fall under NSW criminal law.

"To wipe or delete it is a different thing and there's a possibility that it could be construed as malicious damage, not unlawful access."

It is unclear whether the Janteknology data was copied or actually deleted and corrupted, but Miller has been quoted in the Australian media as being furious that no criminal charges can be laid.

In a statement posted on Janteknology's website announcing the closure, Miller states the company was experiencing tough economic conditions prior to the data destruction incident.

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