A German court in Frankfurt (Beschl. v. 14.05.2012 – Az.: 5/28 Qs 15/12) has ruled that a request for mutual legal assistance from the United States regarding stripping assets belonging to Kim Dotcom, has no basis for legal action in Germany.
Mural of Kim Dotcom painted by Cart’1 courtesy of Thierry Ehrman – Abode of Chaos.
Kim Dotcom, the founder of the file-sharing MegaUpload site was arrested in Auckland, New Zealand in January of this year. He had been sought by the US authorities on copyright infringement charges relating to pirated content on his websites.
As a part of the criminal investigation against the file-sharing service Megaupload, certain assets were supposed to be removed. This request was issued by the American FBI when they called for legal assistance from the German authorities.
The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a criminal offence.
According to the German ‘Telemediengesetz’ (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.
According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.
Since the US legal team did not mention any other circumstances that could constitute a criminal offence in their request for mutual legal assistance, the German court concluded that their request for the recovery of assets is unfounded.
Posted in International Law, Internet and the Law, Law and Technology, Law Blog
Tagged FBI, German courts, Germany, internet, Kim Dotcom, mutual legal assistance, New Zealand, New Zealand law, politics, technology, US
Baltasar Garzon was cleared by the Spanish Supreme Court of overstepping his authority on Monday. He was accused of abusing his judicial powers by opening an investigation into the disappearance of 114,000 individuals during the Franco era. Mr Garzon argued that these were crimes against humanity and therefore could not be subject to a 1977 Amnesty legislation, which prevented the perpetrators from being tried.
Only one judge on the seven judge panel was in favour of a guilty verdict. However it seems his acquittal was based on a technicality rather than a changing view of the law regarding the issue. Mr Garzon had committed an error when he opened the investigation but it did not constitute a crime. The ruling stated:
“He misinterpreted Spanish law but did not knowingly and arbitrarily violate the limits of his jurisdiction … as would be required for a conviction”
He was recently found guilty of illegal wiretapping in a separate case, which in Spanish law seems to constitute a rather grey area. This guilty verdict caused him to be suspended from acting as a judge for 11 years, effectively ending the career of the 56 year of judge. He was also accused of corruption in another case which has been thrown out by the Supreme Court.
His supporters and a number of human rights groups have argued that these cases against him were primarily politically motivated. The prominent judge had made many enemies due to his activism, especially launching an investigation into Spain’s recent bloody history. His opponents have argued that writing history should be left to the historians while his supporters want accountability and answers for the crimes committed. The outcome of this case appears to have done little in terms of clarifying the legal issues surrounding Mr Garzon’s conduct and his aims, it has arguably just raised concerns over the legal and political implications of addressing Spain’s past.
Posted in Law Blog
Tagged abuse of power, amnesty, Amnesty law 1977, Baltasar Garzon, crimes against humanity, disappearance, ECHR, European Court of Human Rights, European law, Franco, human rights, inquiry, judge, judicial activism, judiciary, law, politics, Spain, Spanish courts, Spanish Supreme Court, war crimes