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Hubbard and Another v Vosper and Another
Before Lord Denning, the Master of the Rolls, Lord Justice Megaw and Lord Justice Stephenson.
The court allowed an interlocutory appeal by defendants, Mr Cyril Ronald Vosper, of Inverness Terrace, W, and Neville Spearman Ltd, publishers, and set aside an injunction granted to Mr. Lafayette Ronald Hubbard and the Church of Scientology of California, of Saint Hill Manor, East Grinstead, Sussex, by Mr Justice Kilner Brown in chambers on October 4 restraining the defendants for a period not exceeding 28 days or further order from distributing disseminating, selling or parting with a book entitled The Mind Benders and restraining Mr Vosper from further imparting any information the subject of confidence between the plaintiffs and himself. The injunction had been granted in similar terms ex parte by Mr Justice Griffiths on September 9, when the book was to be published.
Mr Leonard Caplan, QC, and Mr Mordecai Levene for the defendants; Mr Peter Pain, QC and Mr Alan Newman for the plaintiffs.
The MASTER OF THE ROLLS said that when on September 9 Mr Vosper published The Mind Benders, which was critical of the cult of scientology, the Church of Scientology of California issued a writ seeking to restrain its publication. Mr Hubbard was added as a plaintiff a little later.
Scientology was a word invented by Mr Hubbard and he had produced a number of works advocating that philosophy or cult, including a dictionary and an Introduction to Scientology Ethics. Many courses were held at Saint Hill for those wishing to study scientology. The court had before it documents containing warnings about the effect it had on the mental health of those who dabbled in it untrained.
The books were plainly the subject of a literary copyright in Mr Hubbard. The injunction was sought to be maintained on the ground that Mr Vosper had taken substantial parts of those books and also of papers called "Policy documents and bulletins" issued by the Hubbard Course of Communications.
Mr Vosper had apparently been engaged at Saint Hill for some 14 years. In 1967 he signed a document undertaking to pay the fee for a Saint Hill special briefing course and to refrain from divulging Level VI materials to those not entitled to receive them or discussing them within the hearing of such persons. He paid £150—50 per cent of the fee for the course, which he said he did not complete.
It was also sought to maintain the injunction by saying that Mr Vosper had broken the confidence under which he was given special information about the Level VI materials.
On copyright, the first question was whether Mr Vosper had taken a substantial part of the copyright work. In many cases that could not be said: he had only taken two definitions from the dictionary. But it was plain that he had taken as much as a tenth from the Introduction to Scientology Ethics and in particular phrases and quotations showing the nature of scientology and that anyone who spoke against it was condemned as a "suppressive person" and that a suppressive person might become "fair game". In the edition before the court "fair game" was described as meaning "without right for self, possessions or position, and no scientologist may be brought before a committee of evidence or punished for any action taken against a suppressive person or group during the period that person or group is 'fair game' ". After Mr Vosper had left the institution he was declared to be in a condition of enemy and fair game for scientologists.
It appeared that he did take a substantial part of that work and use it in his book. It was said that he was protected by section 6 (2) of the Copyright Act, 1956, which said that "no fair dealing with a literary, dramatic or musical work shall constitute an infringement of the copyright in the work if it is for purposes of criticism or review, whether of that work or of another work, and is accompanied by a sufficient acknowledgment". Mr Vosper certainly set out an acknowledgment; so the question was whether his dealing with Mr. Hubbard's works was fair dealing.
There was little help in the law books, but his Lordship thought that whether there had been a fair dealing or not must be looked at as a matter of degree. Quotations could be made when accompanied by comment or criticism. In Mr Vosper's book there were quotations, sometimes long and sometimes short, from Mr. Hubbard's books followed by explanations, elaborations, and eventually criticism and condemnation. His Lordship would call it a fair dealing, but Mr Pain said that the criticism had to be of the literary work itself and not of the thought underlying it.
But his Lordship thought that a fair dealing with the work could deal not only with the words but with the thought underlying them, as distinct from criticism of the conduct of the individual himself. There was evidence to support the plea that here was a fair dealing.
His Lordship also thought that the inclusion of some of the bulletins circulated only to the people who took the courses was not "unfair dealing" when the bulletins were sufficiently widespread as they were in the present case. So there was a reasonable answer to the copyright claim.
On breach of confidence Mr Pain had pointed out that in his book Mr Vosper had summarized parts of the special advanced courses and spoken of the heavy security clamp on them and that "when a student enrols on these courses he signs a declaration not to divulge to any non-Clear"—one of Mr Hubbard's words—"any of the data which is given to him".
Those words showed that Mr Vosper realized that Mr. Hubbard, for better or for worse, was claiming secrecy on the advanced courses. That raised the public interest aspect of the matter. In Fraser v. Evans ( 1 QB 349)—The Sunday Times case—his Lordship had said that though the court would always intervene to restrain breaches of confidence in proper cases such as trade secrets, they were not prepared to carry that restraint to the point of preventing the disclosure of matters which it might be in the public interest to disclose.
His Lordship saw that there was a big risk of danger to the mental health of people who undertook the course, and concurred with Mr Caplan that the books indicated medical quackery of a type which might be dangerous if practised behind closed doors and that the public interest demanded that people should know what was going on.
On the material before the court there were matters capable of such danger that it might be well in the public interest that the public should know what went on, and his Lordship would not be in favour of using the doctrine of breach of confidence to restrain their publication.
In granting the injunction the judge seemed to think it sufficient that the plaintiffs should have an arguable case and he had relied on two authorities on the basis of which practitioners had apparently gone before judges for injunctions where questions of infringement of copyright arose.
That was contrary to anything his Lordship understood about the way the courts proceeded in granting injunctions. The right course was to look at the whole case, both claim and defence, and then see whether there was a good prima facie case for believing that the plaintiff would succeed at the trial, and if on the whole that was so, an injunction might be granted where damages would not be an adequate remedy. The present was not a case where at the trial the plaintiffs were likely to succeed. Mr Vosper had good ground at the present stage for saying that there was a fair dealing in The Mind Benders in criticizing scientology and that it was in the public interest to investigate and disclose.
The appeal should be allowed.
LORD JUSTICE MEGAW, concurring, said that here was an organisation that laid down a criminal code of its own. Although the provisions of "fair game" had been removed from the 1970 edition of Mr. Hubbard's book, Mr Caplan was more than abundantly justified when he said that there was evidence that the plaintiffs were or had been protecting their secrets by deplorable means and so did not come to the court with clean hands when they asked the court to protect those secrets by an equitable remedy.
Lord Justice Stephenson gave a concurring judgment.
Solicitors: Davidson, Doughty & Co; Lawrence Alkin & Co.