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Karin Spaink verslaat Scientology
Barb - 05.09.2003 11:07
Een belangrijke uitspraak / jurisprudentie over de vrijheid van meningsuiting op het internet.
De rechter heeft uitspraak gedaan, de uitspraak van 1999 is verworpen, vanaf heden moet het onmiskenbaar duidelijk zijn dat er van onrechtmatigheid sprake is bij publicaties op het internet;
 http://www.netkwesties.nl/editie68/artikel1.php
Indymedia wordt er ook nog in genoemd; Karin Spaink betreurt het dat de uitspraak in de Scientology-zaak van 1999 vier jaar lang de rechtspraak aangaande internet in Nederland mede kon bepalen: "Neem een zaak als het hyperlinken door Indymedia naar publicatie van Radikal over Deutsche Bahn. Dat is echt een beschamend vonnis."
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| Lees meer over: vrijheid, repressie & mensenrechten | | aanvullingen | | | Zie ook | dpi - 05.09.2003 15:28
Internet activisme en de wet
Versie 1.0 - 8 juli 2003
http://www.bof.nl/activisme.html
(De uitspraak in kwestie is niet meegenomen in het artikel over internet activisme.)
| | English translation | happy dutchie - 11.09.2003 14:03
SPAINK DEFEATS SCIENTOLOGY
Jurisprudence providers over
In a for Dutch concepts unknown sentence, the Court in The Hague placed the freedom of speech of Karin Spaink above the copyright of Scientology. And the provider-liability is mitigated.
The already for years taking lawsuit handled about the publication of summaries and/or quotes of the documents OT2 and OT3. These are property of Scientology and were, according this cult, unlawful made public and quoted. The case began already in 1995 (link 1), with a 'short court' in 1996. Karin Spaink won a part of the cases, after she in 1996 decided to change the originally full publication of the named documents with quotes.
The today - after 9 times postponement - publicated judgment of the Court in The Hague says in summary:
1. The judgement from 1999, in advantage of Karin Spaink but in disadvantage for a number of providers, is dismissed.
2. All demands of Scientology Church are rejected.
3. Scientology gains agreement on the point that her documents were not rightful made public.
4. The freedom of speech stands above the eventual copyright of Scientology.
5. Providers cannot be held responsible for deletion or locking of publications, if they 'in all reasonance' should have been informed about the infringements.
The most surprising from this judgement is that the freedom of speech in this case is more important then the protection of rights by Scientology. Shortly said: you may copy documents for criticism.
Also for providers this is an important judgement. Xs4all mentioned in the newsreport this afternoon: in 1999 the court decided that a provider who 'in all reasonance' can go out of an unrightful publication should act against it. This has since then become a guideline, because of a lack of legal cadre.
In addition to this, hyperlinking to law violating publications was punishable by law, and providers were obligated to pass names and addresses. The judges now reject this court ruling from 1999; a motivation is missing.
"We are very happy with this, because 'in all reasonance' is no rule with which one can work with in practice. In fact we are getting to deal with an e-commerceguideline which gives much more lucidity, namely that it has to be undeniable clear that there is unrightfullness in the case", says Edith Mastenbroek, spokeswoman of Xs4all.
Karin Spaink is saddened by the fact that the court ruling in the Scientology of 1999 has contributed to the jurisdiction regarding internet in the Netherlands for 4 years. "Take a case like the hyperlinking by Indymedia{.nl} to the publication of Radikal about the Deutsche Bahn {German Railways}. That's really a shameless court ruling."
The court didn't write a lot about the responsibility of providers. "Futher, the court decided that the forcing of providers to delete or make inaccesable, in this case the information of Karin Spaink, to be disproportional."
And also: "According to the court, service-providers are only providing the technical facilities to make the possibility of publication of data for others. It doesn't look right to put them on one line with publishers who, which is assumed, make the publications theirselve."
This was already decided, so this isn't the core of the netcase of responsibility. It wasn't about infringements of providers but about the question what to do when one of their customers commited an infringement. The court doesn't say anything about this, since Karin Spaink wasn't in infringement.
"The question about responsibility of providers lies, regarding jurisprudence, again open", according to Mastenbroek.
So happy
Karin Spaink was this evening very happy about the court ruling which was the outcome after 8 years of hard struggle. The struggle started on 6 september 1995 with the seizing on the Xs4all-computers, shortly after followed by the first 'short court', after which in march 1996 a court ruling followed.
"I have to read the exact ruling, but the only which i condemn in this ruling is that the copyright which Scientology claims on the documents is not wholy rejected", says Spaink. On the other side there is also a confirm of the economical interest Scientology has with the copyright.
After a number of considerations the court stated: "The most important brings with it that the [...] terms of "rightfully made public" [...] is not satisfied." The Scientologydocuments are, even after they were lied in examination in a court in the United States it was according to the court not publical. You may then not just quote from it.
However, later on the judges say that the publicizing on internet of the whole documents - first on the pages of Spaink herself, but later also in newsgroups and on a lot sittes - and in the court in America do put some weight in the case.
It's then about the question if informationfreedom isn't of higher importance then copyright.: "Thinkable is that there are special cases in which the keeping of copyright, like violationprohibition, has to dodge for informationfreedom...
And then moest quoting is allowed: "[...] do the quotes from OT II and OT III have to be seen in the context of the whole report and has come out that these quotes, be it in low number, the for her targetted informationproviding about the Scientology-theory and the way it goes at the Scientology-organisation support and make them believable. Stated nor proofed is that she (Spaink) has had commercial intentions."
This all counted after a thoroughly described discusable character of the cult (see here under) gives Spaink the right to criticize with quotes: "According to the courts judgement can in these special environment not be said that a limit on informationfreedom based on the keeping of the copyright is needed."
Attorney of Scientology, Ruprecht Hermans of Nauta Dutilh, didn't want to directly give commentary on this important argument of the court. The profit of the office can reside in an eventual continuation of the case by Scientology at the 'higher court'.
Scourge over Scientology
Is the court almost not giving attention to the responsibility of the providers, it's letting more room for changes for content of criticism: in the net amount of 15 pages of court ruling, there are 3 for the character of the practices of Scientology, and thus reviewing it. At most quotes from a certain German ministre of Familycases, older people, women and youth got rough attention. The court weights the criticism on Scientology to state it's relevant to quote from the documents, and is raising more important then an eventual copyrightlawfull interest. The success:
"From the here under 8.3 stated texts is proofed that Scientology c.s. with their theory and organisation are not afraid to reject democratical values. From the documents follows also that the secret-keeping of OT II and OT III also has the target to use power on the members of the Scientology organisation and to prevent discussion about the theory and practices of the Scientology organisation."
Also see:
Panoussis loses higher appeal from Scientology (15 march 2003) (3)
reports from Karin Spaink (january 2001) (4)
Scientology-camouflagements (15 novembre 2001) (5)
Googlebombing Scientology (6)
Links:
1 -> http://web.planet.nl/archief/daily/dp222.html
2 -> http://www.xs4all.nl/nieuws/overzicht/verd1ned.html
3 -> http://www.netkwesties.nl/editie10/artikel3.html
4 -> http://www.netkwesties.nl/editie7/column1.html
5 -> http://www.netkwesties.nl/editie25/artikel5.html
6 -> http://www.netkwesties.nl/editie32/artikel5.html
[Peter Olsthoorn, 4 septembre 2003]
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This is a translation of: http://www.netkwesties.nl/editie68/artikel1.php
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I'd appreciate if one who understands English and Dutch checks the article for any translation mistakes. I'm sure there are are several (small) mistakes in it...
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Additional links:
Slashdot about this event: http://yro.slashdot.org/yro/03/09/08/0230218.shtml?tid=123&tid=99 (English)
Xs4all about the couty ruling: http://www.xs4all.nl/nieuws/overzicht/scientology3.html (Dutch)
Spaink's website: http://www.xs4all.nl/~kspaink (Dutch, English)
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