This very remarkable judgment puts, at least for the time being, an end to the conflict between Scientology and Karin Spaink and the Dutch Internet providers[1]. This time not only has a judgment been rendered on the responsibility of the providers, but also especially on the freedom of information. This does not mean, however, that the Internet has been turned into an “information free state”, as this judgment was delivered subject to a strict legal framework, which is applicable both in the real and in the virtual world.

The facts

The Church of Scientology claims to be a religious organisation. Critics think that it is a sect that is primarily after money and that it is very dangerous. This has already led to many proceedings all over the world, inter alia, concerning the provision of information about Scientology on the Internet.

Scientology’s texts and courses are secret, but some of these texts have become public over the course of time. This applies, inter alia, for the so-called “Operating Thetan” (OT) texts, of which considerable parts can be found back in a statement made for American proceedings, the so-called Fishman Affidavit. This was open for inspection for a while at the Los Angeles court registry. In 1995, Karin Spaink, a Dutch journalist who was investigating Scientology, took a number of Scientology texts from the Fishman Affidavit and published them onto her personal website, which was obviously accessible through a large number of Dutch Internet providers.[2] Scientology demanded her to stop this publication and urged the Internet providers to take action.

Initially, Scientology did not provide any written evidence that it was legally entitled to the texts and that these were copyright protected. The Internet providers pointed this out to Karin Spaink after Scientology had partially substantiated its rights before the preliminary relief proceedings, and asked her to inform them as to what she intended to do about the accusation of copyright infringement. Subsequently, Karin Spaink replaced these texts with a discussion that she had written herself and which included a considerable number of quotations taken from the texts. Preliminary relief proceedings and proceedings on the merits followed.

Preliminary relief proceedings

In the preliminary relief proceedings a judgment was rendered on 12 March 1996.[3] The claims against Karin Spaink were rejected because she had remained within the boundaries of quotation law. The claims against the providers were rejected because the standard which the District Court had laid down to determine their liability had not been complied with. The President of the district court judged that if there is no reasonable doubt on an infringement and the person entitled has informed the provider, the Internet provider must take action. If he does not take action, he is acting unlawfully against the person entitled. This principle can be found back in an American judgment on a Scientology case, and on which basis the Internet providers appealed in the Dutch preliminary relief proceedings. With regard to Karin Spaink, the President judged that the texts were made public by the Fishman Affidavit, so she was entitled to quote from this text. This was the weak spot in the judgment, because these texts were included in the Fishman Affidavit against Scientology’s will. Scientology successfully took steps to obtain a protective order for that Affidavit, so that it was no longer publicly accessible.

Liability of Internet providers

On 9 June 1999, the district court rendered judgment in the proceedings on the merits[4]of the case. Naturally, the standard for liability of the Internet providers was under discussion again. On the basis of a comprehensive substantiation the district court came to the same judgment as the President:

“Within this scope, the question as to what extent the service providers themselves infringe the copyright if users of their services put infringing documents on the Internet will be discussed. The district court puts forward that the activities of the service providers in this case are limited to the transmission of information from and/or to its users and the saving of that information. The service providers neither select the information, nor do they process it. They only provide the technical facilities to enable others to publish. Like its president (in his judgment of the preliminary relief proceedings dated 12 March 1996), the district court is of the opinion that in these circumstances the service providers do not publish themselves but only provide the opportunity for publication. Further, the district court is of the opinion that the activities of the service providers do not consist in relevant reproductions in copyright respect. It concerns reproductions dictated by technology that are created not so much as a consequence of an act of the service provider but as a consequence of an act of the home page owner or the consumer retrieving information. The district court finds support for this judgment in section 5(1) of the amended proposal for a Directive of the European Parliament and the Council on the harmonisation of certain aspects of copyright and related rights in the information society as submitted by the Commission of the European Communities on 21 May 1999. In this respect, it is not important whether the information is accessible through an Internet address or through a hyperlink (an electronic reference that can be clicked upon on a web page).


This does not alter the fact that the service provider that does not publish and reproduce himself can be bound to render assistance and take adequate measures if he is informed that one of the users of his computer system is infringing the copyright through a web page or is acting unlawfully in any other way. A certain degree of care may be expected from the service providers regarding the prevention of further infringement. Also, in view of the circumstance that the service providers act within their profession, the possibility they have, is to block access to the homepage and the damage which could be the result of further infringements, it must be judged that the service provider that is informed about a user infringing copyright on its homepage or acting unlawfully in any other way, whereas the correctness of that information cannot reasonably be doubted, acts unlawfully himself if he does not take action. It may be expected from the service provider that he removes the infringing documents from his computer system and also that he makes known the name and address of the user in question to the person entitled upon this person’s request.”


This elaborate assessment sets the standard under Dutch law for the time being. As described later on in this article, on appeal the court of appeal focused on another aspect of the case. It was brief in its confirmation of the criterion formulated by the district court:

“In the opinion of the court of appeal, service providers only provide the technical facilities for enabling the publication of information by others. Therefore, it does not seem correct to put them on one line with publishers who, as may be assumed, publish themselves.
This judgment also corresponds with the Agreed Statement to section 8 of the WIPO Copyright Treaty: "It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the "Berne Convention." “

This substantiation rejected Scientology’s grievance with respect to the providers. Subsequently, the court of appeal no longer needed to determine whether the liability criterion of providers as laid down by the district court was correct. In this respect we still do not have the opinion of a higher court. It does not seem probable though that the court of appeal will have severe objections against the criterion. For, the court of appeal has explicitly endorsed the departure point of the reasoning that providers are not publishers.

Lawful Publication and Right of Quotation

Subsequently, the appeal proceedings took a different line than the preliminary relief proceedings and the court of first instance. In the proceedings in the first instance, the copyright and the procedural qualification of Scientology had been made plausible with regard to three of the texts. The district court obviously judged that publication of the full texts resulted in infringement by Karin Spaink. For the assessment of the right of quotation, the district court first had to determine whether the texts had been published legally. This was a key matter according to the district court, because it had been made available to at least 25,000 Scientology members. The fact that secrecy was imposed for this was not relevant according to the district court. Subsequently the district court assessed:

“What Spaink quoted from the works in question - only a relatively small part of the works to illustrate its argument, without that there is exploitation of the works - remains within the boundaries set by the law in that respect. She therefore does not infringe CST’s copyrights. The order claimed (to cease and continue to cease any infringement) cannot be allowed. It is true that Spaink published these works in full on her homepage before 23 February 1996, but after a demand by CST she removed them from her homepage, and there is no fear of repetition. This means that the plaintiffs do not have any interest in this claim.”

The Court of Appeal has a completely different opinion on this. It was an established fact between the parties that one of the three texts had been published legally. Scientology contested the legality of publishing the other two. With an appeal to the legal history of the Copyright Act, the court of appeal delivered the judgment that it is only relevant whether the first publication of a work within section 12 of the Copyright Act was legal. This refers to the person entitled making the work accessible to the general public. Scientology has never done this with respect to these two texts, as they were only made available for inspection in strictest confidence.

Perhaps unnecessarily, the court of appeal assesses that another explanation of the concept of publication cannot be of any avail to Karin Spaink. The temporary deposit for inspection of the Fishman Affidavit at the Los Angeles court and the subsequent distribution of copies of that statement took place without Scientology’s permission. A publication by members or ex-members of Scientology cannot be seen as legal either, as it may be assumed that they were all bound to secrecy. The court of appeal therefore concludes that there has not been any legal publication within the meaning of the Copyright Act and that for that reason there is no right of quotation either. This makes it an established fact that quotations from these texts result in an infringement of the copyright.

Section 10 ECHR

This was not the end of the judgment of the court of appeal; it was followed by a substantive assessment of the texts and of the Scientology movement. First, the court of appeal assessed that the boundaries of copyright law may not be restrictive, and that the system of the Copyright Act does not provide the opportunity to relax the criteria for publication of a work. The court of appeal had to assess this, as in a judgment from 1995 the Supreme Court had assessed that a restriction of copyright law for which there is a need and which fits within the system of the law, is admissible in principle.[5] This could change in the future as the Copyright Directive contains a restrictive system of limitations of the copyright.[6]

Subsequently, the court of appeal took a look at rules beyond the Copyright Act and concluded that section 10 ECHR provides a basic right of freedom of information. Karin Spaink and the providers had argued that Karin Spaink intended to provide information about the Scientology doctrine and organisation and to warn for wrongs. The court of appeal discussed this defence and employed the following criterion:

“Pursuant to section 10(2) ECHR, the right of freedom of information is subject to restrictions that are required in a democratic society in order to protect the rights of others inter alia. These rights in principle also include copyrights, as this has been provided for in the law and serves for the protection of other people’s rights. It is possible that there are special cases in which the enforcement of the copyright, such as a prohibition on infringement, must give way to the freedom of information. It will be checked below whether in the present case the allowing of Scientology’s claims, which will lead to a restriction of the freedom of information, is necessary in a democratic society; in other words whether this restriction meets a pressing social need and is proportionate to the legitimate aim pursued, for the purpose of which, taking into account all circumstances of the case, a proportionality test/weighing up of interests must be carried out and for which a certain margin of appreciation has been left to the national authorities (see the judgment of the European Court of Human Rights of 26 April 1979, NJ 1980, 146).”

In 1995 a number of official documents from the German Federal Government had already been submitted in the preliminary relief proceedings, documents which gave a very negative opinion on Scientology. It is argued, inter alia, that Scientology is aims for world domination and is an opponent of democracy. In addition, statements by the founder’s son, a former president of Scientology, had been submitted to the court.
L. Hubbard’s son argued that intimidation, threat and pressure can be regarded as standard practices of the Scientology method. The former president says the following about opponents of Scientology:

“In the jargon of Scientology, when one is "declared" this means that one has been declared a "suppressive person" and, therefore, may be harassed, hurt, damaged or destroyed without regard to truth, honesty or legal rights. It is considered acceptable within Scientology to lie, cheat, steal and commit illegal acts in the name of dealing with a "suppressive person"”

After an elaborate quotation from these sources, the court of appeal came to the following conclusion:

“The exhibits 19a, 19b and 19c which Mr. Bakker Schut submitted to the court show that Karin Spaink’s account includes some quotations from OT II and OT III in addition to quotations by third parties. In the opinion of the court of appeal, the quotations from OT II and OT III must be regarded within the context of her full account and it has turned out that these quotations, although little in number, support and make plausible the provision of information on the Scientology doctrine and state of affairs in the Scientology organisation which she had in mind. It has not been argued or proved that she also had a commercial aim in mind with these quotations.
The abovementioned texts under 8.3 show that Scientology c.s. are not afraid of rejecting democratic values. The texts also imply that the secrecy of OT II and OT III is also intended to exercise power over members of the Scientology organisation and to prevent any discussion on the doctrine and practices of the Scientology organisation.
As concomitant circumstance it applies that the documents OT II and OT III were temporarily available to everyone through the action of the abovementioned Californian District Court, were therefore in the public domain and were placed on the Internet in that period.


Furthermore, the court of appeal has taken into consideration that forcing the providers in this case to remove or make inaccessible Karin Spaink’s information is disproportional.
In the opinion of the court of appeal, it cannot be stated that a restriction of the freedom of information pursuant to the enforcement of copyrights within the meaning of section 10 ECHR is required and that the interest of Karin Spaink and the providers and the general interest in the freedom of information of section 10(1) ECHR in relation to that of Scientology c.s. in the enforcement of their copyrights weighs less in this case either. Therefore, the first mentioned interest does not have to give way to Scientology’s interest and the appeal to section 10(1) ECHR is successful.”

This means that the right to publish quotations, which cannot be based on the Copyright Act as there was no unlawful publication, can be based upon section 10 ECHR, for which the court of appeal more or less analogously adapts the criteria of the Dutch quotation right. The system of the Copyright Act which, according to the court of appeal, did not offer room for further restrictions, is broken by section 10 ECHR. In my opinion, the court of appeal would have come to the same judgment if the Directive, with its limiting system of restrictions, had already been implemented in The Netherlands; the Directive only harmonises the copyright law, not freedom of information and the copyright law is completely set aside in this case.

Thus, the court of appeal rendered a principal judgment which shows that there are indeed cases in which the copyright law must give way to the freedom of information. This does not mean though, that as a result, the Internet has become the information free state which some would like to have; the court of appeal only concluded this judgment after elaborate quotations of large quantities of evidence proving that the general interest in these special circumstances is best off with publication. As a rule, copyright law is a restriction on the freedom of information which is justified in a democratic society, but this is different if the copyright law is used for assaulting that democratic society itself, as in the case of Scientology and shown in the texts quoted by the court of appeal. This is a rule that can both be applied in the real and in the virtual world.

As far as I know, this judgment is unique, in the sense that I do not know any earlier judgments in which the copyright law had to give wayto the freedom of information on the basis of a substantive judgment of the texts and their context.[7]



[1]To be found on www.rechtspraak.nl under LJN-number AI5638.

[2]Also at present a lot of information can be found on its website, including procedural documents and case law, see www.spaink.net.

[3]Judgment by the President of the District Court The Hague 12-3-1996, Mediaforum 1996-4, p. B59-61 with note from D.J.G. Visser; Computerrecht 1996, p. 73, with note from D.W.F. Verkade; AMI 1996, p. 96. The author of the present note was involved in these preliminary relief proceedings, but not in the proceedings on the merits that followed.

[4]IER 1999/47, also to be found on www.rechtspraak.nl under LJN-number AA1039.

[5]Judgment of the Supreme Court of 20-10-1995, NJ 1996/682, Dior/Evora.

[6]Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society of 22-5-2001, L167. The implementing legislative proposal 28 284 is still pending before the Lower House of Parliament, although the Directive should already have been implemented on 22 December 2002.

[7]Somewhat close comes the judgment of the District Court Amsterdam 10-3-1993, BIE 1994/92, BMM/Edition “Die Marke”, ground 14. Also see the note under that judgment.


Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.

Authors

Pors-Wouter

Wouter Pors

Partner
Netherlands

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