Although Scientology attempted at the last minute to withdraw its cassation appeal, the Advocate General is now advising the Court to examine the substance of the case, “having regard to the unity of the legal system or the development of the law, or in view of its significance in practice.” If the Court follows this advice – and there is every likelihood that it will – the withdrawal will be formally recognised, but the Court will examine the substance of the arguments put forward on copyright, the liability of internet providers and freedom of information. This means that the case law that Spaink and XS4ALL so ardently wish to see will be a reality.
XS4ALL and Spaink are delighted that the Supreme Court is finally able to give its opinion on the case. Over the last 10 years XS4ALL has had to incur high costs to defend itself – partly on behalf of all other internet providers – against the legal onslaught from Scientology. XS4ALL and Spaink have persevered with these proceedings precisely to defend freedom of speech to the hilt. The Advocate General explains that parties to a lawsuit do not have an automatic right to withdraw proceedings at any time of their choosing “as if no interests of other parties were at stake”. “Anyone who confronts his adversary with uncalled-for cassation proceedings and in so doing puts him to great expense (…) does not, in my opinion, merit such absolute freedom, either from a moral or from a legal perspective.” Such a withdrawal also does no justice to society, the Advocate General writes, because the State too has incurred costs.
Scientology has a tendency to withdraw at the last minute from lawsuits which it instigates. That has happened twice in the Netherlands. The first interim injunction proceedings in the autumn of 1995 were withdrawn by Scientology two days before the session and in 1998 an appeal lodged by Scientology was withdrawn a few days before the oral pleadings (which by then had been fully prepared). This pattern has been repeated in many lawsuits abroad.
This particular case has been running since 1995, when Karin Spaink first placed documents drawn from the doctrine of Scientology, originating in an American lawsuit, on her website. Computers were seized on XS4ALL’s premises. Spaink, XS4ALL and 20 other internet providers whose subscribers had placed Scientology documents on their websites were summoned to appear in interim injunction proceedings. The presiding judge dismissed Scientology’s claims. A long drawn-out lawsuit ensued, in which the proceedings constantly went in favour of Spaink and XS4ALL. In September 200 the Court of Appeal in The Hague ruled that Spaink’s right to freedom of speech in exposing the dubious doctrine of Scientology weighed more heavily than the copyright of the ‘church’.