This advice will address the potential legal claims available to Pop and Soul against Slim Shady in the tort of nuisance, and to Caesar against Slim Shady in the tort of conversion, based on the law of New Zealand.
a) Advice for Pop and Soul
Pop and Soul (P&S) wishes to know if they owned the concert experience and could seek an injunction to stop Slim Shady’s documentary. This issue falls within the tort of private nuisance.
A private nuisance is an unreasonable interference with a person’s use and enjoyment of their land (Oldham, 2011). For P&S to succeed, they would need to establish that Caesar’s actions of viewing and filming the concert from his property, and Slim Shady's subsequent use of that footage, constituted such an interference with P&S’s use of Eden Park.
The central legal issue is whether there is a right to prevent a neighbour from overlooking one's property and profiting from what they see. The highly persuasive Australian High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) provides guidance. In that case, the defendant built a platform on his land adjacent to a racecourse and broadcast the race results in competition with the racecourse owner. The court held that this did not amount to a nuisance. The majority decided that a landowner does not own a ‘spectacle’ that occurs on their land, and that there is no general legal right to privacy from being overlooked by a neighbour.
Applying this principle, P&S’s situation is analogous to that of the racecourse owner. They are staging a spectacle (the Tyla Quick concert) on their property, Eden Park. Caesar, like the defendant in Victoria Park, is using his own property to view that spectacle. The law does not recognise that P&S ‘owns’ the view of the concert in a way that can be protected by the tort of nuisance. Caesar is entitled to look at what is happening on P&S’s land from his own property. The fact that he used a camera with a powerful zoom does not change the fundamental principle.
Therefore, as Caesar’s initial act of filming from his property is unlikely to be an actionable nuisance, P&S would have no legal grounds in nuisance to secure an injunction against Slim Shady. Slim Shady is simply using the footage that was, from a nuisance perspective, lawfully obtained. P&S’s claim that they ‘own’ the concert experience is not a right that the tort of nuisance protects.
b) Advice for Caesar
Caesar is upset that Slim Shady used his video footage and wants to know if he can sue for the tort of conversion.
Conversion is an intentional act of dealing with goods that is seriously inconsistent with the owner’s possession or right to immediate possession (Kuwait Airways Corp v Iraqi Airways Co, 2002). To succeed, Caesar must establish that Slim Shady interfered with his ‘goods’ or ‘chattels’.
The key issue here is whether digital video files can be considered ‘goods’ for the purpose of this tort. Traditionally, conversion applies to tangible property—physical objects that can be possessed. Digital files, being intangible electronic information, do not fit this description easily.
The leading English authority, which would be highly persuasive in a New Zealand court, is Your Response Ltd v Datateam Business Media Ltd (2014). The Court of Appeal held that purely intangible information, in that case an electronic database, could not be the subject of a claim in conversion. The court reasoned that conversion protects possession of chattels, and the act of copying information does not deprive the owner of their original property.
Applying this reasoning to Caesar’s situation, Slim Shady copied the video files from Caesar’s laptop to his USB stick. The original files remained on Caesar’s laptop, and he was not deprived of their use or possession. Slim Shady did not take the laptop itself or any other physical object belonging to Caesar. He merely duplicated the information. Following the logic in Your Response, this act of copying intangible digital files does not amount to conversion.
While the New Zealand Supreme Court in Dixon v R (2015) considered digital files to be ‘property’ for the purposes of a specific criminal charge, this was in a different legal context and does not automatically alter the position for the civil tort of conversion. Therefore, it is unlikely that Caesar’s claim for conversion against Slim Shady would be successful.
References
Dixon v R [2015] NZSC 147, [2016] 1 NZLR 678.
Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19, [2002] 2 AC 883.
Oldham, M. (2011) Torts in New Zealand: Cases and Materials. 5th ed. Thomson Reuters.
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 60 CLR 479.
Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281, [2015] QB 41.
