Can the "de minimis non curat lex" rule render actions that are otherwise illegal, legal?

Question

My understanding is that the rule can be used in court to strike down actions in court. I was wondering whether it might also perhaps be used legitimately by someone, outside of a court case, and apart from a court ruling, to determine that an action that would otherwise be considered illegal, was in fact lawful, in a legal positivistic sense, by virtue of this rule.

For example, perhaps it's the case that photocopying a page of a book, in a particular situation, would be considered to be a copyright crime without the use of the rule. Is it then the case that the rule might be able to be invoked, to say that the photocopying is perfectly lawful? Or is it perhaps alternatively the case that the "de minimis non curat lex" rule throws no comment on the legality of the photocopying, and that the rule can only be used to determine unenforceability in a court of law?

Answer 1

The maxim "de minimis non curat lex" is not so much of a rule as a guideline. It essentially says that when a court considers a matter too trivial to bother with, it can simply dismiss the case. It also constitutes advice not to make a legal case over trivial matters. It always involves judgement over what is or is not trivial in a particular context. It does not ever change the law.

For example, perhaps it's the case that photocopying a page of a book, in a particular situation, would be considered to be a copyright crime without the use of the rule. Is it then the case that the rule might be able to be invoked, to say that the photocopying is perfectly lawful?

Photocopying a single page of a book is very unlikely to be a crime. Under US law the government must prove intentional copying of works for personal financial gain with a total retail value of at least $1,000 (and in practice criminal charges are not brought unless unlawful copies are made in bulk as a business). I have not found the exact monetary lower limit of criminal copyright infringement in England and Wales, but I am confident that a single page of a book would not qualify.

Beyond that UK law specifically provides for fair dealing. This allows one to lawfully make a copy or use copyrighted materiel for, among other purposes:

• Private and research study purposes.
• Performance, copies or lending for educational purposes.
• Criticism and news reporting.
• Incidental inclusion.
• Copies and lending by librarians.
• Caricature, parody or pastiche.

(Source: "UK Copyright Law: Fact sheet P-01"

If making a copy of a page of a book did not fall within the scope of fair dealing, then it might be an actionable tort, and if the copyright owner choose to peruse it, the maxim would not automatically lead to a dismissal, although it could form part of an argument for dismissal.

If such dismissals occur routinely, a legal realist might say that showed that such copying was not in fact covered by the law, but most legal theorists would not put it that way. (Legal realists generally take the view that the actual law is what courts actually enforce, not what is on the statute books or even what is described in court opinions.)

Answer 2

The "de minimis" principle is not a uniform one, but highly contextual. It has been found in both civil and criminal law (both of which are relevant to copyright), for analyzing causation, level of harm done, extent of breach of a contract, and procedural compliance such as strict application of time limits. There is not much commonality here apart from a general sense that "trivial stuff" can be ignored. In Halsbury's Laws of England, the principle is summarized as (vol 96, para 759, 2018 ed.):

Unless the contrary intention appears, an enactment by implication imports the principle of legal policy expressed in the maxim de minimis non curat lex [...] so if an enactment is expressed to apply to matters of a certain description it will not apply where the description is satisfied only to a very small extent.

Note the several cautionary phrases requiring interpretation!

Small crimes are still crimes, but you might not get punished for them in practice

There are de minimis-type principles in many contexts, but in criminal matters the "contrary intention" is usually present. The idea is that when something is made a crime, Parliament has explicitly decided that the thing is really bad, and so even minor examples of the thing ought to be covered.

In the criminal law, it's typical to find offences that don't specify a minimum harm done for somebody to be found guilty, but where that does affect the sentencing. For example, theft has no exceptions for stealing things that are not worth much - and prosecutors' charging guidelines give some examples:

Theft can cover a wide range of financial harm, from something as minor as stealing a paperclip to theft of goods worth millions of pounds. Financial loss is one factor which will be relevant to whether a prosecution is needed in the public interest but the impact on the victim of the theft of even low value goods can be significant. Examples of thefts of low value goods where a prosecution might well be in the public interest would include items of sentimental value or items loss of which causes significant inconvenience, such as house keys.

Stealing a paperclip is still a crime, just one that you're unlikely to be charged with, given that prosecutors have better things to do.

In the same way, criminal provisions of copyright law don't require proving a specific amount of monetary loss. The legislation does currently say that gain or loss has to be monetary, CDPA (1988) 107(2A), 198(1B), but the nature of these offences makes gain or loss difficult to estimate. See R v Wayne Evans [2017] EWCA Crim 139 for a case, relating to operating a torrent-hosting site, finding that although the prosecution's estimate of financial loss to the music industry was "entirely notional",

[t]here was undoubtedly a real loss to the owners of the relevant copyrights and related performers. Further, quite apart from such loss as could be identified and quantified, such offending always has a wider detrimental impact on the music industry and its profitability: and the music industry is an important economic contributor to society. That detriment is none the less real for being difficult to quantify. As has, in fact, long been established in the context of intellectual property offending, an element of deterrent sentencing is justified in this context; not least also because of the difficulty in tracking down and investigating such offending.

In a similar way, there is no "de minimis" standard to apply to your example of copying a single page - although you may have all sorts of other defences. It would be relevant at sentencing. It's also true that criminal prosecution is unlikely to be pursued if the prosecutors judge the harm is minimal (but as just explained, they might also consider it worthwhile on other public policy grounds).

"Striking out" is about serious procedural faults, not about aspects of your opponent's case you simply don't like

For your phrase "striking down actions", the precise terminology of "striking out" relates to civil procedure, where you may apply for the court to remove a statement from your opponent's pleading (or the court may do so on its own). This is usually combined with an application for summary judgement, because whatever remains after the striking out would not be enough to justify a trial. In the Civil Procedure Rules, and in actual practice, this is only really done if there's been abuse of process or the case is absolutely hopeless (e.g. the claims are totally incoherent). Judges will have an eye to the litigation history and the general conduct of the parties. If everything is in order procedurally then the action is likely to proceed. For example, in libel, a statement must now cause serious harm to be considered defamatory (and so "serious" is bringing de minimis ideas into play), but courts have allowed claimants a lot of latitude about what this really means - giving them the chance to argue it in court, even if they lose in the end.

There is a counterpart rule in criminal procedure but it is much more limited, applying only to abuse of process. It is established in R v Latif [1996] 1 WLR 104 that

An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.

The idea is that if the prosecution's case does not meet the standard of an "affront to the public conscience", then it will proceed. And even if there has been prosecutorial misconduct, judges have often allowed the case to go on (perhaps with certain evidence excluded) rather than stop it entirely. So as far as your scenario, this particular bit of procedure is not relevant: you don't get to argue that the case should be thrown out before trial on the grounds that the alleged crime was not very serious.

Answer 3

"De minimis" literally means, "the law isn't bothered about things that are too small".

It does not make legal things illegal, or illegal things legal again.

Rather, its a guideline a judge may consider applies, as a simple rule of thumb, to decide that some case, or some matter, just isn't worth judicial time to sort out, summon and hear witnesses, hold hearings, and take up resources, over petty things.

The judgement of what is "too small" varies depending on jurisdiction, civil/criminal, and other factors. For example some sets of law may say that anything technically a crime, by however small an amount, should be prosecuted equal to more severe offences, others might have a judicial practice that some minor acts, although technically and in fact criminal, are so petty as to not prosecute at some small enough level of offence.

Naturally if some party feels the matter is/isn't too small, they can appeal the summary ruling that would follow on that point.

Answer 4

The question asks: whether [the principle] might also perhaps be used legitimately by someone, outside of a court case, ... to determine that an action that would otherwise be considered illegal, was in fact lawful...

I'm not sure how "lawfulness" can be established outside of a court case.

But certainly the principle is used all the time outside the courts, for example trivial benefits of employment, like making personal phone calls from the office, are not generally considered taxable. That's presumably because someone has decided that if it came to court, it would be thrown out as being "de minimis". But it doesn't make it "lawful".

Answer 5

In a wider sense, in the police and Crown Prosecution Service (Prosecutor in The US) have discretion as to whether they 1. Investigate, 2. Arrest and 3. Charge someone accused of committing a crime. this is where the 'de minimis' check would practically be applied before something made it to court. This does not affect the legality of your actions, and a decision not to investigate is almost never final.

For example, it is de-facto legal to exceed the speed limit on a motorway in the UK by 1MPH. Whilst you could technically be arrested and charged for the offence of exceeding the speed limit. Unless they really really want to add this to a string of other charges, the likelihood you will end up being fined and/or in court are practically nil.

Answer 6

If you are able to generalise and say that there is some description of minor breach that the courts will never deal with then you could make a positivist argument that they are not unlawful.

However the de minimis principle is normally applied in individual cases. For example the courts may decline to deal with a one-off minor trespass but if it happens often then the courts might grant an injunction so you can't generalise that that minor trespasses are always de minimis.

Answer 7

An issue I haven't seen mentioned yet is that many actions which might be illegal if done without permission are 100% legal if done with permission, and in many cases the cost imposed upon the "victim" by an action may be less than the smaller of:

1. The cost of processing and approving a request in a manner that provides evidence of such approval.

2. The cost of denying a request, including both the costs of handling it and any harm one's reputation might suffer as a result of the denial.

If it would be impossible to ask someone for request permission to do something in a manner that wouldn't be likely to cause more "harm"--whether the request was accepted or rejected--than simply performing the action without permission, requiring that the person seek permission before performing the action would increase the harm to the consequent recipient of the request.