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New Zealand Supreme Court says MegaUpload’s Kim Dotcom can be extradited to the US, but also provides one more appeal option

By Chris Cooke | Published on Wednesday 4 November 2020

The Supreme Court in New Zealand has ruled that MegaUpload founder Kim Dotcom can be extradited to the US to face criminal copyright infringement charges in relation to his long-defunct file-transfer platform. However, in something of a mixed bag ruling, the top court also provided Dotcom and his former colleagues with an extra route of appeal before any extradition actually takes place.

Authorities in the US have been trying to extradite Dotcom ever since they shut down MegaUpload on copyright grounds back in 2012. Dotcom’s lawyers have argued that there are no grounds for extraditing their client, mainly because the extradition treaty between the US and New Zealand does not cover copyright infringement.

However, prosecutors have countered that Dotcom et al’s alleged facilitation of copyright infringement via the MegaUpload business was sufficient to constitute fraud, which is covered by the two countries’ extradition agreement.

A district court initially sided with the prosecutors and said Dotcom could be extradited back in 2015. However, the MegaUpload founder then began a series of appeals working his way up the court hierarchy. New Zealand’s Supreme Court agreed to hear the case in late 2018.

In a long ruling published earlier today, the top court says that twelve of the thirteen charges made against Dotcom satisfy obligations under New Zealand law to allow extradition. Which in theory means he and his former MegaUpload colleagues can be extradited to the US.

Not quite though. Not yet. Earlier in the appeals process, the Dotcom side sought a judicial review of the original district court ruling in 2015, based on the argument that procedural and substantive errors were made during that initial hearing.

Lower courts declined to allow that judicial review to take place on the basis such a thing would be an “abuse of process”. However, the Supreme Court says that the lower courts were wrong to deny the judicial review.

With that in mind, the court said in a statement this morning: “The court allowed the appeals in the judicial review proceedings. It has directed the parties to file brief submissions identifying the issues that remain outstanding in the judicial review proceedings and setting out their view as to which court should resolve these issues”.

So, that’s one more technicality that will further delay efforts by the US to get Dotcom into an American courtroom. Even if the judicial review fails, the actual extradition would then have to be signed off by New Zealand’s justice minister. And his decision would also be subject to judicial review.

This whole saga is definitely not over yet then. Although, in the main, the Supreme Court’s overall judgement was not favourable to Dotcom.

Commenting on the judgement, Dotcom’s lawyer Ron Mansfield stated: “For the Dotcom team, and especially for Kim and his family, it is a mixed bag. There is no final determination that he is to go to the United States. However, the court has not accepted our important copyright argument and in our view has made significant determinations that will have an immediate and chilling impact on the internet”.

On the positive side of today’s ruling, Mansfield added: “The court has accepted – correctly – that we should be able to argue that the serious procedural issues that have arisen in this case can and should be argued. This means there will be further argument in the Court Of Appeal and/or the Supreme Court regarding these significant concerns that are well established in the evidence”.

“This is significant”, the lawyer added, “and means that nothing further can happen until the further required hearings take place. Kim stays here, at home, with his family”.