Searching your spouse’s electronic data could get you into trouble

When the prospect of divorce is on the table it can spark a flurry of searching desks, drawers, pockets and briefcases for information that might help your case when identifying assets.

In the past, courts have tended to be pretty relaxed about this process. As long as you haven't forced a lock or broken in and as long as you take copies (rather than the originals) the documents will usual be admissible in court.

But now we live in an electronic age the 'searches' tend to be through mobile phones and emails. Copies are saved to USB sticks and usually printed.

In the case of Imerman v Tchenguiz, this is exactly what happened. In this case the scale of the copying was huge. The interesting point was that rather than it being a case of 'self help' (i.e. when a spouse searches for themselves) it was done by the wife's brother. The case was brought before Mr Justice Eady in civil proceedings in the Queen's Bench Division, rather than in matrimonial proceedings in the Family Division because it related to the lawfulness of the brother having 'hacked' into the husband's computers and his right to keep the resulting copies. The actual divorce will be handled separately in the Family Courts.

In this instance the wife, husband and her two brothers all worked together. The wife's brother (who shared the computer system) went into the shared office and printed off many hundreds of thousands of pages relating to the husband's business, financial and property dealings. His argument was that he was looking for information relating to the husband's financial situation and the whereabouts of his assets. He argued that the husband would seek to hide his assets in the coming divorce proceedings (ie. not disclose everything). He also argued that as they shared the computer system he had not 'broken in' and had done nothing wrong.

The husband, however, disagreed. He brought proceedings for injunctive relief (which would stop the communication or disclosure of the material to any third party - including the wife). He argued that as much of the data had been password protected and it contained information and correspondence relating to the divorce itself (from his solicitors) it was private and had been obtained unlawfully. He asked for the information to be returned to him.

In ruling on the case, Mr Justice Eady concluded:

"It is difficult to understand why the [husband] should not simply be entitled to have this information "back", or rather to take it out of circulation and to restrain its use or onward transmission by others. That is irrespective of how it was originally obtained and by whom."

He went on to say:

"….. there is a powerful case for saying that any information stored on a computer to which access is password-protected may be regarded as confidential, irrespective of its actual content, by virtue of that fact alone."

At this level, things seem relatively straight-forward. Mr Justice Eady ruled that the pages should be returned to the husband and could not be used by the brother or the wife.

However, more complex was the brother's argument that he had a reasonable belief that, had he not searched for the information, the husband would fail to give full and frank disclosure. He felt that the matrimonial court would be misled and the wife would not have a fair trial in her claim against the husband. Mr Justice Eady did not find it necessary to decide this issue. He felt that it should not be pre-judged in a civil court and was best left to the matrimonial proceedings to decide. The husband had already given the wife's solicitors seven level-arch files of information, and this would only be an issue if, in subsequent divorce proceedings, he did not disclose everything. Similarly, Mr Justice Eady did not rule on whether he felt the unauthorised access to the data constituted a criminal offence, under statutory provisions, either.

So, what can we learn from this case?

• If you have confidential data on your computer that you do not want your spouse to see, don't think that you can hide behind passwords. You are obliged to disclose all of your assets and resources, including trusts, in matrimonial proceedings. Passwords and confidentiality does not change this.
• However, you can still password-protect your own data and, if you're looking at someone else's, don't' attempt to 'crack' the password. If you've been given the password in the past, be wary about using it if you know that the other person would consider the situation (and their permission) to have changed.
• Don't open emails not addressed to you, without authorisation.
• If you do 'hack' into your spouse's computer, do be aware that you are breaking the law. At least one husband who raided his wife's computer in the context of matrimonial proceedings was sent to prison - for a first offence.
• If, however, you think you have a strong case for search and seizure of your spouse's data and documents, go through the proper channels, rather than doing it yourself. Apply for a Court Order.