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Kim Dotcom wins case in the Human Rights Tribunal

12 April 2018 - By Kate Duckworth

There is a long history between Kim Dotcom, the United States government and the New Zealand courts. The New Zealand District Court first executed warrants in January 2012 against Dotcom on request from the United States government in a bid to extradite Dotcom and his business partners to face copyright claims over the file sharing website mega.com.  Ever since the original search warrants, Dotcom has opposed his extradition.

In 2015 the District Court ruled that the entrepreneur should be extradited. Dotcom unsuccessfully appealed that decision to the High Court.  He has appealed that decision and it was heard in the Court of Appeal in early February 2018, with a decision pending.  

There have been many legal wranglings since the US sought extradition, including most recently, the United States government successfully striking out seven out of eight causes of action in judicial review proceedings relating to the original search warrants brought by Dotcom.  

The latest legal wrangling relates to a Privacy Act request made by Dotcom.  In July 2015 Dotcom sent an information privacy request to all 28 Ministers of the New Zealand Crown, and nearly every government department, requesting all personal information held about him.  He said that the information was required for pending legal action.  The requests were transferred to the Attorney-General and then declined on the basis that they were vexatious and insufficient reasons for urgency had been provided.  

Dotcom took the refusal to the Human Rights Tribunal naming Crown Law, the Attorney-General, the Department of the Prime Minister and Cabinet, Immigration New Zealand, the Ministry of Business, Innovation and Employment, the Ministry of Foreign Affairs and Trade, the Ministry of Justice and the New Zealand Police.

The question for the Human Rights Tribunal was whether there was an interference with Dotcom’s privacy under the Privacy Act 1993.  

In an 80 page decision, Kim Dotcom v Crown Law Office [2018] NZHRRT 7, the Human Rights Tribunal found the transfers were not permitted by the Privacy Act and there was no proper basis for declining the request.  

The Crown claimed that Dotcom’s requests were not genuine Privacy Act requests and were a litigation tactic, a “fishing expedition” and that Dotcom had an ulterior motive to disrupt the litigation and his extradition hearing and therefore vexatious.

In finding Dotcom to be a persuasive and credible witness who gave clear, thorough and consistent evidence, the Human Rights Tribunal was satisfied that the requests were genuine and based on an honest belief that the requests were necessary to ascertain what personal information about him was held by government agencies in New Zealand.

Damages of $30,000 were awarded against the Attorney-General for the loss of a benefit Dotcom might reasonably have been expected to obtain but for the interference and damages of $60,000 were awarded against the Attorney-General for loss of dignity and injury to feelings.

Dotcom now awaits the outcome of the appeal to the extradition ruling.  Will he stay or will he go now?

Kate Duckworth is an intellectual property lawyer and patent attorney. She can be contacted at kate@kateduckworth.co.nz and www.kateduckworth.co.nz.

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Last updated on the 12th April 2018