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Extradition

The Extradition Act 2003  was controversial even when it was passed. Developed bilaterally by the US and UK in response to the 2001 World Trade Center attacks, the Act was intended to facilitate the extradition of terrorists and serious criminals. By 2011, when the US sought the extradition of Richard O'Dwyer, a student at Sheffield Hallam University, on charges of copyright infringement, it clearly went beyond the scope of the Act's intent. Extending the Act's operation to cases of copyright infringement sets a dangerous and disproportionate precedent for violating human rights. This was particularly true in O'Dwyer's case, as he had not committed a crime under UK law. His lawyers argued that, as relatively small fry with few resources to defend himself, he was being used to attempt to set a precedent that could open up a mass of international litigation and extradition efforts. The wider effort is a multi-faceted attempt by the content industry and the US government to introduce harsh and restrictive international copyright laws under which enforcement will disproportionately chill free speech and innovation on the internet. Other controversial cases - such as that of accused hacker Gary McKinnon - have raised the profile of the problems with the Extradition Act, but O'Dwyer's is the one that is most directly relevant to the issues ORG covers. O'Dwyer was the first UK citizen to be threatened with extradition for copyright infringement.

Background

On 13 January 2012, Judge Quentin Purdy ruled that the 23-year-old computer science student Richard O'Dwyer could be extradited to the United States to be prosecuted for copyright infringement. If found guilty, O'Dwyer could have faced up to ten years in a US prison. The Home Secretary, Theresa May, approved the extradition. O'Dwyer appealed the decision, but in November 2012 reached an agreement with the US that avoided extradition.

The activity that got O'Dwyer in trouble was setting up and operated the TVShack.net website from his bedroom, hosting it on servers located in the Netherlands. The US alleged that TVShack included links to unauthorised copies of copyrighted TV shows and films and claimed that O'Dwyer was guilty of copyright infringement under S.107(2.A) of the UK Copyright, Designs and Patents Act 1988. However, in 2010, the TV-Links case established a non-binding UK legal precedent that a website merely linking to infringing content is not itself guilty of copyright infringement.

The question of whether O'Dwyer would be guilty of copyright infringement under UK law is crucial because S.137(2) of the Extradition Act only allows for extradition if the alleged actions would constitute an offence in both countries. In the UK, an offence must be punishable a minimum of a one-year prison sentence to qualify.

ORG's view

The O'Dwyer case raised two sets of concerns. The first is that if O'Dwyer had committed a crime in the UK, he should be given a fair trial in his own country. The second is the lack of due process for shutting down access to websites. The generic top-level domains .com, .net, and .org were set up for international use. Extradition on the grounds that the US has jurisdiction over any site registered in those gTLDs would create legal uncertainty for businesses and individuals selecting them for their sites and give the US the green light to extend the international reach of its legal system. The result for the UK would be to discourage investment and stifle innovation by internet start-ups and digital intermediaries.

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