Evaluating the Position of Information or Data in the Law of Property

• Jurisdiction: South Africa
• Pages: 220-239
• Author: Mzukisi Njotini
• Citation: (2015) 26 Stell LR 220
• Published date: 16 August 2019
• Date: 16 August 2019

220

EVALUATING THE POSITION OF INFORMATION

OR DATA IN THE LAW OF PROPERTY*

Mzukisi N Njotini

LLB LLM LLD Candidate (University of South Africa)

Senior Lecturer, University of South Africa

1 Introduction

In recent times, t here has been vast accu mulations of modern forms of

technologies, for example the interne t and the world-wide-web. In some cases,

these technologies a re benecial to society. For example, they assist in doing

business online and exchang ing information1 or dat a2 by or between

governments, businesse s, or individual computer us ers. In other cases,

these technologies are used a s tools or instru ments to commit novel crime s.

The examples of these crimes a re inter alia phishing, ha cking, distr ibuted

denial of service att acks (“DDoS”) or man-in-the-m iddle attacks.3 I nsofa r

as these technologies are both be necial and detri mental to society, they

facilitate the creat ion of a new society. This society is referred to as t he

information society.4 An inform ation society is characte rised by a high

level of information.5 Accordingly, information or dat a is processed and

exchanged ad innitum. Furthermore, a n information societ y is generally

the equivalence of what is sometimes refer red to as a “vir tual world.”6 It

is a three -dimensional sp ace in that it is ctional, real and situ ated in the

universe.7 Computer or inte rnet users are i n virtu al worlds represented by

an imat ed ch arac ter s (avat ars). 8

* This contr ibution is base d on a research do ne for the author’s LLD the sis, entitled “E -Crimes a nd

E-Authenticat ion – A Legal Perspect ive” for which the author is reg istered for at the Unive rsity of South

Afr ica (U NISA)

1 Se e U Sieber “The Emergen ce of Information Law – O bject and Charact eristics of a New Legal O rder in

E Lederma n & R Shapira (eds) Law, Information and Information Technology (2001) 1 10-11: The term

“informa tion” means any “pie ce of news with a mean ing for the recipie nt; its assimi lation usually c auses a

change withi n the recipient” See H H aken Information and Self-Organisation: A Macroscopic Approach

to Complex Sys tems 3 ed (2006) 15 where it de notes a resourc e in terms of which a me ssage or instr uction

is conveyed

2 T he word “data” refer s to the electro nic represen tation of infor mation in any fo rm See s 1 of the

Electronic Co mmunications a nd Transactions Act 25 of 20 02

3 Se e RW Downing “Shori ng up the Weakest Link – W hat Lawmaker s Around the World Need t o Consider

in Developing Comp rehensive Laws to Combat Cyb ercrime” in I Car r (ed) Computer Crime (2009) 4 9

See also EU Savona & M Mig none “The Fox and the Hu nters – How ICT Technologies Ch ange the Crime

Race” in EU Savona (ed) C rime and Technology: New Front iers for Regulation, L aw Enforcement and

Research (200 4) 7 8

4 F Webst er Theories of the In formation Soci ety 3 ed (2006) 8-25

5 S D urrani Infor mation and Libera tion: Writings on the Polit ics of Information a nd Librarianship (2 008)

256

6 A D Ross, S Mortinger, R C hrist, C Scelsi & F Alem i (eds) Computer Games an d Virtual Worlds: A New

Frontier in Int ellectual Proper ty Law (2010) 1 3

7 G L astowka & D Hunter “T he Laws of the Virt ual Worlds” in RK Sher win (ed) Popular Cul ture and Law

(2006) 363 369

8 G L astowka Virtual Ju stice: The New Laws of O nline Worlds (2010) 9

(2015) 26 Stell LR 220

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In this art icle, the relationship between infor mation or data and the law of

property, and/or the impact of in formation or data on the law of proper ty is

examined. More sp ecically, it is investigated whether a compute r user has a

legally recognised and valid clai m to a certain piece of in formation or data,

which he or she keeps or stores in his or her comput er. In order to address

this question the theor ies regarding the conce pt of property are d iscussed.

This review or discussion lead s to the scruti ny of certain selected as pects of

the law of property. These aspect s are studied in orde r to establish whether

proper ty rig hts9 to inform ation or data are possible. Conversely, it is asked:

whether the principles of proper ty law have developed to such an extent that

information and dat a can be afforded protect ion as incorporeal or i ntangible

things.10 The study is ca rried out again st the background that al l objects of

property must or shou ld be corporeal or tang ible.11 The question above does

not necessarily relate to t he protection of information or dat a as such. This is

particularly so be cause certai n legislative frameworks cur rently exist which

recognise the need to s afeguard inform ation or data, whether it is proce ssed

and exchanged or not.12 However, this protection does not and/or cannot

be interprete d to also mean that infor mation or data is proper ty for juridical

purposes.

In examini ng the aforesaid question this ar ticle is divided into four

sections. The r st section discusses the position of infor mation or data in the

law of property. Selected cases that suppor t and criticise the re cognition of

information or dat a as property a re discussed. The se cond section studies

the theories of proper ty. The most common of these theories are a mongst

others the naturalist,13 metaphysical, historical, positivist,14 psychologica l

and sociological theories to proper ty.15 In this article, the natu ralist and

the positivist theories of property are examined. More speci cally, it is

submitted that the lat ter theories are essential to the study of prope rty law in

9 Se e AJ van der Walt & G Pienaar Intr oduction to the Law of Pro perty 6 ed (2009) 9 Van der Walt and

Pienaar st ate that a propert y right is “any legally r ecognised clai m to or interest in pro perty”

10 Erlank and Ja nkowich, amongst ot her authors, dis cuss the meani ng and importa nce of property i n online

environme nts See W Erlank Proper ty in Virtua l Worlds (2012) 46-57; AE Jankowich “Prop erty and

Democracy i n Virtual Worlds” (2005 ) 11 B U J Sci & Tech L 173 173- 203

11 Consolida ted News Agency (Pt y) Ltd (In Liquidation) v Mobil e Telephone Networks ( Pty) Ltd 2010 3 SA

382 (SCA) 29-32; Cornelissen NO v Univer sal Caravan Sales (Pt y) Ltd 1971 3 SA 158 (A) 179D-E See

also Millar v Taylor (1769) 98 ER 201 232

12 The most notable of t hese are inter a lia the Copyr ight Act 98 of 1978, Regulat ion of Intercep tion of

Communica tions and Prov ision of Communi cation-Related I nformat ion Act 70 of 2002 and the Pr otection

of Personal Info rmation Act 4 of 2013

13 The princi pal idea of naturalist the ory is, amongst others , that the law is a body of rules or pr inciples

that are found ed on right reason Se e, S Strömholm A Shor t History of Legal Th inking in the West (1985 )

198 These rules or p rinciples are said to b e founded on right “rea son” Se e SP Sihna What is Law?: The

Different Theories of Jurisprudence (1989) 6; ST Aquinas “Law and t he Common Good” in E D Kent (ed)

Law and Philosop hy: Readings in Legal Philoso phy (1970) 552 553

14 Legal positi vism developed in an er a where capitalism , as a policy from the West, wa s emerging Dur ing

that period , a specific method of regu lating, which was impers onal in nature, was ado pted T he latter

method relied on v alue-neutral r ules and proced ures that were sub jected to the cont rol and monitorin g by

the state It was t hen accepted tha t a rule becomes law ba sed on it being create d and accepted by soci ety

Further more, legal positivism reg ards a rule as the law beca use society accepts t hat rule as law See A

Wats on The Natu re of Law (1977) 2-3; J Bentham The Limits of J urisprudenc e Defined: Being Part Two

of an Introduc tion to the Princi ples of Morals and Legi slation (1970) 88

15 R Pound An Introd uction to the Philoso phy of Law (1922) 203-204

EVALUATING THE POSITION OF INFORMATION OR DATA 221

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