The Crown over-reaching in latest Dotcom court spat

The Crown has announced it will seek a legal order to stop Kim Dotcom from commenting about any court cases he’s involved in.

In the High Court at Auckland on Monday, Crown lawyer Kristy McDonald took issue with comments Mr Dotcom had made on Twitter.
She said many of the tweets were scurrilous and risked undermining the court process. In one instance, she said, he had tweeted part of a legally privileged document.
On Tuesday Ms McDonald said she will apply for a formal order preventing Mr Dotcom from tweeting or otherwise commenting on legal proceedings.
Defence lawyer Paul Davison, QC, said the order sought was very broad and the court needed to take care that his client’s free speech was not curbed any more than necessary.

I don’t understand a lot about this article. Firstly and most importantly, has the Crown given any thought to the Bill of Rights Act? After all, s 14 of the Bill of Rights Act protects freedom of speech, stating:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

I would be curious as to how a gag order preventing Mr Dotcom the right to speak his mind about a prosecution being taken against him could be considered to “be demonstrably justified in a free and democratic society”. Mr Dotcom is a private individual. If the Crown chooses to prosecute him, he has the right to speak his mind about that. At the end of the day, I would have thought that the only case he risks damaging is his own case.

Secondly, what’s this about a legally privileged document that Dotcom is supposed to have tweeted a portion of? If it’s the Crown’s document, why would Dotcom have it, let alone tweet it? The Crown surely wouldn’t have to disclose privileged documentation; that’s the point about legal privilege – you don’t have to disclose it.

And if the document is from Dotcom’s side, and he’s tweeting it, then that’s surely his problem. If one purposefully puts a legally privileged document into the public sphere, one waives any subsequent right to privilege over that document.

Anyhow, who says there was anything privileged about the portion that was tweeted? A document can continue portions of information that are legally privileged, and portions that aren’t – it’s not an exact science.

But there’s more in the article:

The Crown also wants Mr Dotcom to turn over interview transcripts and other documents belonging to a journalist who wrote a book about him.
Ms McDonald told the court material collected by New Zealand Herald journalist David Fisher was highly relevant to Mr Dotcom’s compensation case.  She says Mr Dotcom said he didn’t have the material, and when the Crown asked Mr Fisher for it, he refused to hand it over.
Ms McDonald said the usual protections for journalists’ material did not apply because Mr Fisher wrote a biography, not news articles.  She said that meant Mr Dotcom’s legal team ought to demand the material and give it to the Crown as part of the legal discovery process.

Again, I don’t understand the Crown’s position here. If the Crown believes that no journalistic privilege attaches to Mr Fisher’s transcripts and other material, they can surely seek a third party disclosure order. Dotcom has no power of compulsion of Mr Fisher, and no Court order can bestow that power upon him.

Regardless, I would be surprised if the Court were to grant a third part disclosure order (should one be applied for), as I believe the Crown is wrong in its submission that “the usual protections for journalists’ material did not apply because Mr Fisher wrote a biography, not news articles”. The fact remains that Mr Fisher is a journalist who has written and continues to write numerous news articles about Dotcom. Any interviews Dotcom has given Mr Fisher have undoubtedly provided material both for Mr Fisher’s book and for his articles. Mr Fisher would simply characterise his book as having flowed from his journalistic material, rather than being a separate and distinct biographical work, with none of the source material having been obtained purely for “non-journalistic” reasons.

I think the Crown is on a hiding to nothing on this one.


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