Scientology loss keeps hyperlinks legal

The Church of Scientology loses a courtroom battle to compel a Dutch writer and her ISP to remove postings from a Web site, in a ruling that addresses copyrighted material.

Business Week/September 8, 2003

The Church of Scientology has lost a courtroom battle to compel a Dutch writer and her Internet service provider to remove postings from a Web site, in a ruling that keeps hyperlinks to copyrighted material legal.

On Friday, the Dutch Court of Appeal in The Hague, Netherlands, denied the Scientologists' latest appeal in an online copyright dispute that dates back to 1995. The Church of Scientology has repeatedly pursued legal action in the Netherlands against the writer, Karin Spaink, and her local ISP, Xs4all, over documents first posted in 1995 on the Web site of another customer of the company. In denying the appeal, the court also overturned two previous rulings that lower courts had handed down. One of these decided that ISPs should be held accountable for any illegal or copyrighted materials posted by their subscribers and that ISPs should take down hyperlinks to such materials. An Xs4all representative cited the overruling of that decision as the larger of the two victories.

"I think this establishes an important freedom of speech precedence for the Internet and ISPs in particular," said Edith Mastenbroek, an Xs4all spokeswoman. "Any laws set to control how ISPs interact with copyright laws must be made crystal clear."

Representatives for the Church of Scientology could not immediately be reached for comment.

The disagreement began in 1995, when, according to Xs4all, a representative for the Church of Scientology showed up at its office with a legal official and attempted to take possession of the company's servers. The religious group took issue with the publication of some of its church documents on a Web site hosted by the ISP.

Spaink subsequently became involved, when she heard of the dispute and posted the same documents to her own site hosted by Xs4all.

The Church of Scientology then filed a copyright lawsuit, demanding that the published materials be removed from the sites in question. The church also contended that the ISP should be held accountable for its subscribers' activities in regards to copyrights.

But a District Court of Amsterdam judge ruled in favor of Xs4all and its 1996 subscribers, saying the posted documents were legal, based on individuals' rights to quote from copyrighted material.

In a second lawsuit decided in 1999, the Amsterdam courts again ruled in favor of the ISP, citing the right to freedom of speech. However, in that ruling, the judge said that ISPs should be held accountable for posted materials that might violate existing laws and copyrights.

That 1999 decision also made reference to hyperlinks to materials that might infringe on copyrights. The ruling said that if a provider was made aware of illegal publishing of copyrighted materials, or hyperlinks to copyrighted information, it should take action and remove the Web site or links.

Friday's appellate ruling quashed that decision as well.

Xs4all representatives said they were particularly happy with the ruling, as it relates to hyperlinks.

"After all, a hyperlink is merely a road marker on the Internet, and it can therefore never be unlawful," the company said in a statement.

Scientologists have taken a vigorous approach to squelching critical Web sites, pressuring site operators, ISPs and even Internet heavyweights such as Google into removing links to Web pages. In 1999, Amazon.com removed but later restored links to a book critical of Scientology.

The court case resolved Friday was originally spurred by a lawsuit the religious group filed against a former member regarding unpaid fees for classes he took related to Scientology. In his defense, the individual, Steven Fishman, produced several documents the group reportedly created. The documents became public record as a result of the legal proceedings and have since been protected by freedom of speech laws.

Spaink said that she is happy the court found in her favor, but remains wary of further legal battles with the Church of Scientology.

"I got into this because I thought it was important to define how copyright issues are settled online and how ISPs should or should not be held accountable," Spaink said. "I'd like to let it rest, but I expect to be back in court over this."

Spaink said her one remaining issue with the court rulings involves the definition of what constitutes a published document in terms of fair use. A document that has been purchased and read by tens of thousands of individuals--as the materials posted on her Web site have been, according to the Church of Scientology--should not be exempted from fair use under copyright laws, she said.

Since becoming involved in the legal battle, Spaink has become an adviser to several organizations on the topic of freedom of the media and the Internet.