After riding a wave of popularity, fame and fortune, in 2012 Kim Dotcom’s file-storage empire, with Megaupload as the centerpiece, was dismantled in a high-profile law enforcement operation.

Coordinated action in North America, Europe, Asia, and Oceania was unprecedented in a copyright case. The extent of the collaboration between the United States and New Zealand authorities was always controversial, with some aspects of the local investigation subsequently declared illegal.

Yet despite years of legal wrangling and the inevitable appeal against every adverse ruling, nothing could completely derail the case against Dotcom, or prevent New Zealand’s Supreme Court giving extradition the green light in 2020 .

Minister of Justice Authorizes Extradition

Four years after the Supreme Court rendered its decision, in August 2024 New Zealand’s Minister of Justice authorized Dotcom’s surrender to the United States.

What followed was an inevitable appeal by Dotcom, in this case an application for judicial review of the Minister of Justice’s decision. Dotcom claimed the decision was tainted by bias and bad faith, and further complicated by the favorable treatment of his former co-defendants.

Application for Judicial Review

Until 2023, Megaupload coders Mathias Ortmann and Bram van der Kolk were also fighting extradition. After striking a deal with the New Zealand authorities, they admitted crimes attracting comparatively lighter sentences than those they would’ve faced in the U.S. Importantly, the deal eliminated extradition altogether.

Dotcom’s request for judicial review described the disparity between U.S. and New Zealand sentencing as intrinsically “grossly disproportionate”.

However, had Dotcom also been prosecuted in New Zealand, he believes he would’ve still been treated more harshly and received a far stiffer sentence than the 2.5 year prison terms handed to Ortmann and van der Kolk. He had previously asked the authorities to charge him in New Zealand but the police refused to do so.

Six Causes of Action as Detailed in the Request For Judicial Review

Dotcom’s request raised seven causes of action; the seventh was dismissed leaving six for the consideration of the High Court. They appear here heavily summarized with additional detail available in the 59-page High Court decision linked below.

1. Mandatory restrictions (error of law): Justice Minister Paul Goldsmith’s “surrender decision” violated a statutory mandatory restriction. The Minister erred in failing to find that the offenses for which his extradition is sought are of a political character.

Dotcom further claimed that the aim of the extradition decision was to appease U.S. copyright holders, affect interpretation of the DMCA, while depriving him of safe harbor protections under New Zealand law to ensure a disproportionate sentence. Due to a civil forfeiture order in the United States, Dotcom will not be able to fund his defense there, his submission added. The largest criminal copyright case in history would be required to rely on the under-resourced public defense service, the Court was informed.

2. Discretionary restriction (error of law): The Minister misapplied the discretionary powers granted to him. The United States prosecution was not brought in good faith or in the interests of justice, but was politically motivated. Being on bail for 12 years amounts to an undue delay in the extradition process and Dotcom’s deteriorating health makes surrender unjust and oppressive.

3. Unreasonableness: The surrender decision was unreasonable due to the disparity in treatment of Dotcom and that of his former colleagues. They ultimately spent less than a year in prison, Dotcom faces up to life in prison in the United States.

4. and 5. BOTH ABANDONED After discovery requests against the Minister of Justice and Commissioner were denied, both causes were abandoned. Both concerned the charges and plea agreements of Dotcom’s former colleagues and were rejected due to the privilege attached to their plea agreements. Other components were deemed a “fishing exercise”. Claims that local charges were denied to appease the United States lacked “evidentiary foundation.”

6. Refusal to charge and prosecute in New Zealand: The Police Commissioner’s refusal to charge Dotcom under New Zealand law amounts to unlawful discrimination. Ortmann and van der Kolk were granted a domestic prosecution for the same conduct as Dotcom, but Dotcom’s request was denied. This is disproportionate treatment under a decision made for an improper purpose.

Decision of the High Court

A High Court ruling by Justice Christine Grice dated September 10 roundly rejects Dotcom’s allegations.

The Minister did not disregard any mandatory restrictions under s 7 of the Extradition Act in reaching his Surrender Decision. There is no evidence to support Mr Dotcom’s allegation that the United States prosecution was politically motivated or carried out for any other improper purpose.

The Court found no evidence of any conduct amounting to a breach of the Extradition Treaty, bad faith, or an abuse of process.

The Minister did not fail to take into account any discretionary restrictions under s 8 of the Extradition Act. Mr Dotcom’s contention that he will face grossly disproportionate treatment, thus making his surrender unjust and oppressive, is not made out

If convicted, Dotcom’s sentence in the United States is likely to be substantially higher than a sentence for similar offenses in New Zealand. The Court acknowledges that but indicates that the assumed severity is not enough to affect the decision to extradite.

While Mr Dotcom’s likely sentence if convicted in the United States is substantially higher than what he would expect to receive in New Zealand, this is not such that it would “shock the conscience” of properly informed New Zealanders, nor does the likely United States sentence amount to an “irreducible life sentence”, so as to constitute a grossly disproportionate punishment.

The Court further found that the disparity between the sentences received by Dotcom’s former colleagues and his likely sentence in the U.S. is not a relevant factor. The Court also found that there has been no undue delay in the extradition process, and that the surrender decision itself was not unreasonable.

In relation to the Commissioner’s decision to charge Messrs Ortmann and van der Kolk in New Zealand, but not Mr Dotcom, that decision was a proper exercise of the Police’s discretion.

There were differences in circumstances between Messrs Ortmann and van der Kolk and Mr Dotcom which entitled the Police to reach different conclusions with respect to the alleged co-offenders.

There is no evidentiary basis for Mr Dotcom’s allegations of bias or unreasonableness. It is not appropriate for this Court to engage in what effectively amounts to a merits review of the Police’s prosecution decision.

What happens next has not been disclosed, but options at this stage are much more limited than they were. The exhaustion of every available option seems the most likely outcome but on what timeline is even more difficult to predict.

DOTCOM v MINISTER OF JUSTICE [2025] NZHC 2634 / CIV-2024-485-583 ( pdf )

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