Can you steal an exam without taking it?

Last year, several students of the Ibn Ghaldoun secondary school in  Rotterdam ‘stole’ their final exam. What they did was break into the sealed room at their school where the exams were kept and take pictures of the exam using a (cell phone) camera. They didn’t actually take the physical exam itself.

After the students were caught they were prosecuted for theft, which is novel and interesting, because the relevant article in the Dutch law (article 310 Sr) requires that a physical good is taken, which was not really the case here.

First of all, data (such as a digital picture) does not qualify as a good under Dutch law, it qualifies as data (article 80quinqies Sr). While the Dutch Supreme court has held in the past that electricity (Elektriciteitsarrest) can be qualified as a good and a unique virtual item in a game can also be qualified as a good (Runescape arrest), it has also held that computer data in itself cannot be qualified as a good because it lacks the requisite uniqueness (Computergegevensarrest). Secondly, the taking of a good in the sense of the Dutch law means that the good must be removed from the custody of a third party. This was clearly not the case, because the school was still in possession of the physical exam.

Nevertheless, the court in Rotterdam held that the exam was indeed stolen. The court argued that while the physical exam was not stolen, the students did ‘take’ what was most important about the exam, namely, the secret questions. Without the element of secrecy, the exam has no value. Therefore, the court held that taking the secret of the exam robs the exam of its ‘intrinsic value’ and therefore, photographing the exam counts as stealing.

Several of the students have appealed against the verdict. If the verdict is upheld in appeal, this will be a serious break with the logic of the Dutch criminal system with its division between ‘data’ and ‘goods’. Meanwhile, students – including law students – must  be aware that you can steal an exam without taking it.

Bart Schermer Partner

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