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Before you read on I should point out that I studied for a post graduate qualification in law a few years ago as a hobby. It’s where I met Matt Harris our Lawyer and where I learnt a staggering amount about what I thought the law said and what, in fact, the law actually did. I am not a solicitor or barrister, I am a lawyer in the truest sense of the word however.

The iPhone 4th Gen shenanigans of the last two weeks have seen parties entrenched in a war of words which threaten to end the liberties of some of those parties who were involved and, if they are to be believed, those who are adamant that this whole affair signals the end of free journalism and the beginning of the police state.

Lots of comments have been made by lots of people, but one issue has been overlooked because of all of the posturing and conjecture about what Gawker Media and Jason Chen did or did not know or did or did not do...the actions of the thief.

“Whoa, Ewen. Easy Mate”, I can hear the words of Matt our lawyer before he has even uttered them as that would be Libel to call someone a thief who is not convicted or with evidence that I could use to prove it, but in my opinion, that is what the original ‘finder’ of the phone undoubtedly is but I also dont know his identity.

You see the definition of theft in Californian Law is the same as in UK law, it is...

‘The ‘Act (Actus Reus)’ of the unauthorised taking, keeping or using of another's property which must be accompanied by the ‘Mindset (mens rea)’ of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use’

One illustration of this principle occurred during a visit to a magistrates court whilst I was at University. A young man was charged with ‘The Theft by Finding of 2 Bank of England £20 Notes’. In his admission to the arresting officers, he said that the money was ‘found’ in the street while he was walking through an area of Birmingham. Little did he realise that this admission was to lead to his conviction.

You see, he did not own the notes and by admitting that he found them he admitted that he knew that he was not the rightful owner. When quizzed about why he did not return them to the rightful owner, he suggested he did not know who that was. Tut, Tut, young man because everyone knows that all of the Promissory Notes issued by the Bank of England are the property of The Crown through the office of the Bank itself. And even if you don’t know who the owner is, there is a collection service for lost property in every city in the world...The Police.

In all the noise about Gawker and the raid on Jason Chen’s house, the most important fact was missed. The young man who ‘found’ the phone is guilty of theft whether he knew it or not. It is well established that he ‘looked around the bar for the person’, but he left with the phone and did not entrust it to the Bar Keeper, The Police or AT&T. Offering it for sale through a ‘fence’ was really nothing more than a nail in the coffin of any defense they intended to offer.

So to the raid on Jason Chen’s house...

Journalists are not above the law and whilst local Californian law offers journalists a small ‘safe harbour’ for protection of sources and information leading to sources, there is no protection within such statutes for investigations into the criminal behaviour of a journalist.

Have Gawker Media and Jason Chen committed any crimes?

Well, in paying money for property that was taken as part of an act of theft, they are guilty of ‘Receiving Stolen Property’ in Californian Law this extends specifically to “Buying, Acquiring, Possessing or Concealing”. One of the problems which Gawker and Jason face is that the crime is one of action only and the knowledge and ‘mens rea’ of the crime are only considerations of degrees of punishment and not in the committal of the offence itself. Please also bear in mind that the Engineer in question who lost the phone also had no title over it.

Even if we were to consider the forethought of Gawker, the knowledge that it was property owned by persons other than the ones selling to them was divulged in their first article on the subject.

In summary, there is very little proof required above that which Gawker has already published to assert both cases. The noose was drawn by their own pen and in their haste to gain a commercial advantage over all of their blogging rivals, they have created a sad and desperate rift through journalism and the authorities to which ALL other journalists would be wise to distance themselves.

Many of the decision which are given by courts are to “Send a message to those who would follow” and the District Attorney for San Mateo is presented with just that problem.

Are we really saying it is acceptable to steal something to write a story? Are we really saying that it is acceptable to buy something that clearly is not in the ownership of the seller to write a story? Are we really saying that Apple are not entitled to recover their property with some immediacy?

In a couple of months time, this will come down to a small group of people in a big office taking a long breath and asking themselves if they have what it takes to do the right thing.

Gawker have shown that they have the balls...Does the District Attorney for San Mateo? Come on Jimmy P, do your job!

Ewen

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Ewen Rankin

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