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Analysis: Dotcom Appeal Dismissed

Kim Dotcom’s Appeal against the decision allowing the GSCB to withold information as to communications intercepted by them has been dismissed by the Court of Appeal of New Zealand.

In the course of the 2012 judicial review proceedings against the GSCB, it became apparent that Government intelligence agency had acted unlawfully in intercepting Mr Dotcom’s communications. “GCSB had failed to appreciate that Mr Dotcom’s resident-class visa precluded its surveillance.”

Mr Dotcom is now seeking damages relating to this interference with his privacy.

As part of this claim Mr Dotcom is requesting access to the data gathered in the surveillance in order to properly argue this case. His application was declined and this is an appeal to the New Zealand Court of Appeal.

What it means

This decision appears to indicate that it is now perfectly fine for the Government to illegally surveil New Zealand residents (and presumably Citizens) and then refuse to let you see the evidence they claim to have on you making unsubstantiated claims the disclosure would “harm national security and international relations.”

This decision is perhaps unsurprising to anyone following the trend of declining privacy rights, transparency and independence of the judiciary in Western nations (Snowden, Assange, Manning etc). The National security fallback seems to be a convient way to avoid the leaking of further damaging information to the state.

It is highly questionable this level of control over information by unelected court representatives is in the public interest in any way. The rights of Mr Dotcom to this information is akin to the same rights of all internet users to access data held by Corporations and Government agencies about them worldwide.

A UK court recently ruled in favour of a claimant’s right to know the information held about them by Cambridge Analytica’s sister company. There is no reason this right should not also extend to information illegally obtained by Governments. In fact, the case is even stronger regarding Governments due to the power they hold.

The legal question

The legal question was:

“Does the public interest in non-disclosure of the raw communications outweigh the public interest in disclosure, pursuant to s 70 of the Evidence Act?”

The Court counterbalanced the public interest in the rights of Mr Dotcom to access this data, with the public interest of the GSCB to not release this information

The court ruled “not by a small margin” in favour of the right of the GSCB to withhold this information.

Summary of Decision

The court ruled as follows:

“[72] Having assessed the disputed communications, we find that GCSB’s claim that disclosure would harm national security and international relations is well-founded.

We are satisfied that the interest claimed exists and that disclosure would be likely to injure it. More than that is not appropriate to say without risking the harm that s 70 is designed to prevent.

The balancing exercise
[73] We conclude, not by a small margin, that the balancing exercise favours
non-disclosure. Gilbert J was correct to order, under s 70, that the disputed
information not be disclosed in this proceeding.”

The justification from the Court of appeal Press Release was:

“Yes. The intercepted communications are relevant, and there is a public interest in them being disclosed so they may be put to use in and for purposes of this proceeding. Natural justice and open justice are the two dimensions to the public interest in favour of disclosure. That said, this is not a case in which the information must be disclosed if justice is to be done at all. The GCSB has admitted liability; what is in issue is the quantum of damages for dignitary losses. Summaries of information already disclosed will permit a fair trial in this case. The GCSB's claim that disclosure would harm national security and international relations is well-founded. The balancing exercise favours non-disclosure.”

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