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New Zealand Supreme Court knocks back Kim Dotcom’s appeal over illegally gained evidence in the MegaUpload case

By Chris Cooke | Published on Tuesday 4 February 2020

The Supreme Court in New Zealand has declined to hear one of the side cases in the never-ending MegaUpload saga, concluding that the country’s lower courts considered everything that needs to be considered regarding who has access to illegally gathered evidence.

MegaUpload, of course, was a file-transfer and video-sharing platform accused of deliberately facilitating rampant copyright infringement. It was shut down by the US authorities on copyright grounds all the way back in 2012. Said US authorities have been trying ever since to extradite MegaUpload chief Kim Dotcom and some of his former colleagues from their base in New Zealand to face criminal charges in America.

There has been all sorts of other legal wrangling in relation to the demise of MegaUpload in both the US and New Zealand alongside the core extradition hearings. That includes Dotcom’s claims that New Zealand’s Government Communications Security Bureau illegally spied on him, his family and his colleagues ahead of the 2012 shutdown.

Based on those allegations from Dotcom, the conduct of the GCSB was subsequently investigated. By 2013 it had been confirmed that the agency had indeed broken the law in the way it spied on Dotcom and his associates. That confirmation predictably resulted in further litigation from the MegaUpload camp.

In the end there were two sides to this particular MegaUpload legal dispute. First, whether Dotcom was due damages as a result of him being illegally spied on. It’s generally agreed that yes he is. Secondly, whether Dotcom should have access to the recordings made when the GCSB was intersecting his communications as part of its illegal investigation.

On the second point, the spy agency argues that the recordings should remain confidential citing New Zealand’s 2006 Evidence Act, and claiming that “the public interest in the information being disclosed [is] outweighed by the public interest in withholding it”. Both the country’s High Court and Court Of Appeal have sided with the GCSB on that point.

In a ruling late last year, appeals court judges said that while “the intercepted communications are relevant and there is a public interest in them being disclosed” to inform Dotcom’s ongoing case against the spy agency … “the GCSB’s claim that disclosure would harm national security and international relations is well-founded”. The appeals court’s job, the judges said, was to balance these two facts. They concluded: “The balancing exercise favours non-disclosure”.

Dotcom promptly took the matter to New Zealand’s Supreme Court. But yesterday judges there declined to hear the case, stating: “We are not satisfied that it is necessary in the interests of justice to hear the proposed appeal”.

The judges went on: “While there may be questions arising about the scope and application of s70 of the Evidence Act, the present case is not the appropriate case to consider those issues. No question of principle arises. Rather, the matters the applicant wishes to raise relate to whether natural justice was met in this particular case and as to the weight given to the competing public interests on these facts”.

“Nor does anything raised by Mr Dotcom give rise to the appearance of a miscarriage of justice”, they concluded. “Mr Dotcom’s arguments would reprise matters all of which have been carefully examined in the courts below and, as the Court Of Appeal noted, the ‘general nature of the disputed information is known to Mr Dotcom’. In addition, these issues would arise in a context where the respondent has been held to account having accepted liability and the central question is as to the level of damages”.

Needless to say, Dotcom was disparaging of the Supreme Court’s decision yesterday, writing on Twitter: “Wow. The New Zealand Supreme Court won’t hear my GCSB case. The court agrees: ‘Disclosure would harm national security and international relations’. What does this mean? The rights of Kiwis are secondary to the interests of the United States”.

He subsequently issued a lengthy statement on the side case in which he wrote: “It has long been said that ‘sunlight is the best disinfectant’. For eight years I have fought to shine some much needed sunlight on the GCSB’s conduct so that we as a community can ask ourselves whether we deserve better from the intelligence agencies whose extensive powers are supposed to be used to protect us, not spy on us”.

“Unfortunately”, he added, “today’s judgment confirms that the law as it stands in New Zealand can be used in this way and effectively allows such misconduct to remain in the shadows. I will never know the true extent of the GCSB’s unlawful conduct”.

Although conceding that he is still due damages in relation to the unlawful spying, he went on: “This proceeding has never been about the money for me. It has long since ceased to be economic to pursue it. For me, it has always been about ensuring that we know what has happened and, as a result, the GCSB is held accountable publicly for its unlawful
conduct … I want to make sure that this never happens again”.

Although the Supreme Court has declined to hear this side case in the MegaUpload saga (it declined to consider some other legal technicalities last March too), New Zealand’s highest court did spend some quality time last year considering the actual extradition case against Dotcom et al. We are expecting its judgement on that very soon.

It seems likely it will rule against Dotcom. Although, given the complexities of extradition, his routes of appeal have not yet been exhausted, so it’s unlikely he’ll be sent to the US courts anytime soon.