Hubbard and another v Vosper and another

This case was of great importance in English copyright law. The Church of Scientology tried in 1971 to ban Cyril Vosper's book The Mind Benders on the grounds that it made illegal use of copyrighted material and represented a breach of confidence. However, their case was rejected, not least because the Church was held to be "protecting their secrets by deplorable means"; the public interest of exposing such material outweighed the other considerations. The ruling has since been applied in a number of subsequent cases.

After the dismissal of this case, the Church of Scientology attempted to have Cyril Vosper and his publisher, Neville Spearman, imprisoned for alleged contempt of court, on the grounds that publication of The Mind Benders was deliberately and knowingly calculated to impede the various libel writs which the Church had pending against a number of people. This too was quashed and most of the writs were abandoned shortly afterwards as a "goodwill gesture".



17th, 18th, 19th NOVEMBER 1971

Copyright - Fair dealing - Literary, dramatic and musical works - Fair dealing for purposes of criticism or review - Scope of defence - Not limited to criticism of literary style - Defence extending to criticism of doctrine or philosophy expounded in work - Work not published to world at large - Defence available where unpublished work has had wide circulation - Copyright Act 1956, s 6 (2).

Equity - Confidence - Breach of confidence - Defence - Public interest in publication

Scientology - Courses of instruction in cult of Scientology - Undertaking not to impart information acquired on course- Courses containing material of such a nature that desirable in public interest that information should be made public.

Injunction - Interlocutory - Principle governing grant - Copyright - Claim for infringement - Defence of fair dealing - Plaintiff having arguable case not sufficient to justify grant where defence of fair dealing raised.

H was the founder of the Church of Scientology of California and was the author of a number of books which expounded the doctrines of the cult of Scientology. He had also written numerous bulletins and letters on the subject which had been circulated to members of the cult. V, who had been a member of the Church of Scientology for many years, enrolled for an advanced course on Scientology which the cult's authorities regarded as confidential. They required V to sign an undertaking (a) to use the knowledge acquired on the course for Scientology purposes only, and (b) to refrain from divulging information received to those not entitled to receive it. V did not, however, complete the course. He became disillusioned with Scientology. The cult's authorities thought that he was actively seeking to suppress or damage Scientology, and so, in accordance with the cult's practice, they declared him to be a 'suppressive person' and to be in a condition of 'enemy'. The effect of this was that in the eyes of Scientologists V had no right to 'self, possessions or position' and any Scientologist could take any action against him with impunity. V left the organisation and wrote a book about Scientology, which was stated on the jacket to be 'The first ever investigation into the cult of Scientology by an ex-Scientologist of 14 years' service'. The book was highly critical of Scientology and contained many extracts from the books and other writings of H. H and the Church of Scientology brought an action against V claiming infringement of copyright and breach of confidence and sought an interlocutory injunction restraining publication.

Held - The plaintiffs were not entitled to an interlocutory injunction for the following reasons -

(i) V had shown that he might have a good defence of 'fair dealing' under s 6 (2) [a] of the Copyright Act 1956; whether the use of extensive quotations from H's works constituted 'fair dealing' was a question to be decided by the tribunal of fact, and there was material on which the tribunal of fact could find that there was 'fair dealing'; further the defence of fair dealing covered criticism not only of a plaintiff's literary style but also of the doctrine or philosophy expounded in his works and extended not only to those of the plaintiff's works which had been published to the world at large but also to those which had been so widely circulated that it would be fair to subject them to public criticism (see p 1027 f to h, p 1028 a d and e, p 1031 d g and h and p 1033 f, post); dictum of Romer J in British Oxygen Co Ltd v Liquid Air Ltd [1925] Ch at 393 disapproved:

(ii) although V may have made use of information which he knew that the plaintiffs claimed to be confidential, there were, nevertheless, grounds for thinking that the courses of the Church of Scientology contained such dangerous material that it was in the public interest that it should be made known; furthermore (per Megaw LJ) there was evidence that the plaintiffs had been protecting their secrets by deplorable means, such as was evidenced by their code of ethics, and therefore did not come to the court with clean hands in seeking to protect those secrets by the equitable remedy of an injunction (see p 1028 j, p 1029 c and p 1033 d e and f, post); dictum of Lord Denning MR in Fraser v Evans [1969] I All ER at II applied;

(iii) the defences raised by V to the claims for breach of copyright and breach of confidence were such that V should be permitted to go ahead with publication; to justify the grant of an interlocutory injunction it was not sufficient that, having established a strong prima facie case that he owned the copyright, a plaintiff need only show that he had an arguable case that the defendant had infringed it or was about to infringe it; each case was to be decided on a basis of fairness, justice and common sense in relation to the whole of the issues of fact and law relevant to the particular case; V had reasonable defences to the plaintiffs' claims; if those defences were valid he was entitled to publish his book and the law would not intervene to suppress freedom of speech except when it was abused (see p 1029 g to p 1030 b and j to p 1031 a and p 1033 e and f, post); Donmar Productions Ltd v Bart [1967] 2 All ER 338 and Harman Pictures NV v Osborne [1967] 2 All ER 324 disapproved.

Per Megaw LJ. The fact that a quotation contains every single word of the work criticised or reviewed does not necessarily preclude a defendant from relying on the defence of fair dealing under s 6 (2) of the Copyright Act 1956 (see p 1031 e, post).


For fair dealing in copyright, see 8 Halsbury's Laws (3rd Edn) 435, 436, para 788, and for cases on the infringement of literary work by quotations and extracts, see 13 Digest (Repl) 105-107, 468-487.

For restraining breach of confidence, see 21 Halsbury's Laws (3rd Edn) 395, 396, para 825, and for cases on the subject, see 28 (2) Digest (Reissue) 1081-1090, 868-917.

For the remedy of an interlocutory injunction to protect copyright, see 8 Halsbury's Laws (3rd Edn) 445, 446, para 809, and for cases on the subject, see 13 Digest (Repl) 130-132, 715-737

For the Copyright Act 1956, s 6, see 7 Halsbury's Statutes (3rd Edn) 141-143.

Cases referred to in judgments

British Oxygen Co Ltd v Liquid Air Ltd [1925] Ch 383, 95 LJCh 8q, 133 LT 282, 13 Digest (Repl) 55, 55

Donmar Productions Ltd v Bart [1967] 2 All ER 338n, [1967] 1 WLR 740n, Digest (Cont Vol C) 174, 731a.

Fraser v Evans [1969] I All ER 8, [1969] I QB 349, [1968] 3 WLR 1172, 28 (2) Digest (Reissue) 1090, 9l7.

Harman Pictures NV v Osborne [1967] 2 All ER 324, [1967] I WLR 723, Digest (Cont Vol C) 174, 731b.

Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] Ch 593, 103 LJCh 281, 151 LT 294, 13 Digest (Repl) 116, 574.

Seager v Copydex Ltd [1967] 2 All ER 415, [1967] I WLR 923, 28 (2) Digest (Reissue) 1019, 453

University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, 86 LJCh 107, 115 LT 301, 13 Digest (Repl) 55, 53.

Walter v Steinkopff [1892] 3 Ch 489, 61 LJCh 521, 67 LT 184, 13 Digest (Repl) 52, 22.

Interlocutory appeal

This was an appeal by the defendants, Cyril Ronald Vosper and Neville Spearman Ltd, from the order of Kilner Brown J made on 4th October 1971, on the application of the plaintiffs, Lafayette Ronald Hubbard and the Church of Scientology of California, whereby it was ordered that the injunction granted on 9th September 1971 by Griffiths J on an ex parte application by the plaintiffs restraining the first defendant by himself, his servants or agents or howsoever otherwise and the second defendant by their officers, servants or agents or howsoever otherwise from distributing, disseminating, selling or parting with the book 'The Mind Benders' and further restraining the first defendant by himself, his agents or servants from further imparting any information, the subject of confidence between the plaintiffs and the first defendant to any party whomsoever without the plaintiffs' express consent, be continued for a period not exceeding 28 days or further order. The facts are set out in the judgment of Lord Denning MR.

Leonard Caplan QC and M Levene for the defendants.

Peter Pain QC and Alan Newman for the plaintiffs.


On 9th September [1971] a book was published called 'The Mind Benders'. It was written by Mr Cyril Vosper, the first defendant, and published by Neville Spearman Ltd, the second defendant. It was very critical of the cult of Scientology. On the same day the Church of Scientology of California issued a writ. They went to the judge and obtained ex parte an interim injunction to restrain the publication of the book. Later on Mr Lafayette Ronald Hubbard was added as plaintiff. After hearing both sides, Kilner Brown J continued the injunction but, as the matter involved the public interest, he hoped it would be taken to appeal.

'Scientology' is a word invented by Mr Hubbard himself. He has invented a lot of other words too which he has set out in a Dictionary of Scientology. He defines it in this way:

'SCIENTOLOGY: An applied religious philosophy dealing with the study of knowledge, which, through the application of its technology can bring about desirable changes in the conditions of life.'
In addition to the dictionary, he has written many books about this philosophy or cult. They include 'Axioms and Logics', 'Introduction to Scientology Ethics', 'Scientology 8-80', 'Scientology 8-8008', and 'Scientology - A History of Man'. All of them contain a large number of his invented words. They cannot be understood by anyone who is not versed in the cult. In addition, Mr Hubbard has written numerous bulletins and letters which have been circulated to members of the cult. These give many descriptions of the workings of Scientology.

Mr Hubbard and his adherents occupy a big house near East Grinstead called Saint Hill Manor. They hold courses for those who wish to study Scientology and to acquire proficiency in it. Some of these courses, on their own admission, 'can be dangerous in untrained hands'.

Mr Vosper was a member of the Church of Scientology for 14 years. He worked at Saint Hill Manor as secretary, and such like. In 1967 he put his name down for a course which the authorities regarded as confidential. It was called the Saint Hill Special Briefing Course. He paid a fee of GBP 150 and signed an undertaking 'relating to higher levels of knowledge'. He undertook (a) to use this knowledge for Scientology purposes only; (b) to refrain from divulging level VI materials to those not entitled to receive them or to discuss them within the hearing of such persons. Mr Vosper did not, however, complete the course. He became disillusioned with Scientology. Those in authority thought that he was actively seeking to suppress or damage Scientology. So in September 1968 they declared him to be a 'suppressive person', which meant that he was considered 'fair game', and they declared him to be in a condition of 'enemy'. In order to understand what that means, you have to look at the books. It means that in the eyes of Scientologists, Mr Vosper had no right 'to self, possessions or position', and that any Scientologist could take any action against him with impunity.

So Mr Vosper left Saint Hill Manor. He wrote 'The Mind Benders'. It said on the jacket that it was 'The first ever investigation into the cult of Scientology by an ex-Scientologist of I4 years' service'. It is this book of which the plaintiffs now seek to prevent publication. They do it on two grounds: first, infringement of copyright; secondly, breach of confidence.

1. Infringement of copyright

Whatever one may think of Mr Hubbard's books, letters and bulletins, they are the subject of literary copyright. His name appears as author on every book, letter and bulletin. So he is presumed to be the owner of the copyright in them. In writing 'The Mind Benders' Mr Vosper has made free use of Mr Hubbard's books, letters and bulletins. He has taken very little from some, but from others he has taken very substantial parts. For instance, he has taken quite big extracts from the 'Introduction to Scientology Ethics', and put them into his book. He has also taken substantial parts of the letters and bulletins. The parts taken are so substantial that Mr Vosper will be guilty of infringement of copyright unless he can make good his defence. And his defence is that his use of them is fair dealing within s 6 (2) of the Copyright Act 1956. This provides.

'No fair dealing with 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.'
The last words of the section are satisfied. At the end of his book, Mr Vosper said: 'Criticisms are used from the following books by L Ron Hubbard' - setting them out.

The question is, therefore, whether Mr Vosper's treatment of Mr Hubbard's books was a 'fair dealing' with them 'for the purposes of criticism or review'. There is very little in our law books to help on this. Some cases can be used to illustrate what is not 'fair dealing'. It is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit. Such as when the Times published a letter on America by Rudyard Kipling. The St James Gazette took out half-a-dozen passages and published them as extracts. This was held to be an infringement: see Walter v Steinkopff [1]. So also when the University of London published examination papers. The Tutorial Press took several of the papers and published them in their own publication for the use of students. It was held to be an infringement: see University of London Press Ltd v University Tutorial Press Ltd [2]. Likewise when a band played 20 bars of 'Colonel Bogey' - to entertain hearers - it was not fair dealing: see Hawkes & Son (London) Ltd v Paramount Film Service Ltd [3].

In this case Mr Vosper has taken considerable extracts from Mr Hubbard's work and has commented freely on them. I will give some illustrations. On p 28 of Mr Vosper's book, he gives a quotation from Mr Hubbard's 'Axioms and Logics'. I will emphasise the words taken:

'Scientology Axiom One is the assumption upon which the rest of the subject stands. "Life is basically a static, [and this is further defined] a Life Static has no mass, no motion, no wavelength, no location in space or in time. It has the ability to postulate and to perceive."

'Hubbard has redefined in modern, scientific-sounding terms the ancient Hindu Vedanta concept of a soul or spirit that, whilst appearing to inhabit the physical universe is of a distinctly separate order.'

Another illustration is on p 141 of Mr Vosper's book:
'Hubbard in his book "Introduction to Scientology Ethics, 1968" states: "A Suppressive Person or Group becomes 'Fair Game'. By Fair Game is meant, 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'."

'Would a Scientologist who takes it into his head to murder a declared Suppressive Person be regarded by Scientologists as fully within his rights? That murder has not occurred as far as is known, is not to the credit of L. Ron Hubbard's Ethics but more to the credit of police and courts of the old-fashioned, repressive type.'

Those illustrations enable me to state the conflicting arguments. Counsel for the plaintiffs says that what Mr Vosper has done is to take important parts of Mr Hubbard's book and explain them and amplify them. That, he says, is not fair dealing. Counsel for the defendants says that Mr Vosper has, indeed, taken important parts of Mr Hubbard's book, but he has done it so as to expose them to the public, and to criticise them and to condemn them. That, he says, is fair dealing.

It is impossible to define what is 'fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions.

To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the present case, there is material on which the tribunal of fact could find this to be fair dealing.

Counsel for the plaintiffs took, however, another point. He said that the defence of 'fair dealing' only avails a defendant when he is criticising or reviewing the plaintiff's literary work. It does not avail a defendant, said counsel, when he is criticising or reviewing the doctrine or philosophy underlying the plaintiff's work. In support of this proposition, counsel for the plaintiffs relied on the words of Romer J in British Oxygen Co Ltd v Liquid Air Ltd [4]:

'I am inclined to agree with [counsel for the plaintiffs] that, in this proviso [as to "fair dealing"] the word "criticism" means a criticism of a work as such.'
But, when you refer back to counsel for the plaintiffs' arguments, you will see that all he means is that the criticism must be a criticism of the plaintiff's work, and not of the plaintiff's conduct. I do not think that this proviso is confined as narrowly as counsel for the plaintiffs submits. A literary work consists not only of the literary style, but also of the thoughts underlying it, as expressed in the words. Under the defence of 'fair dealing' both can be criticised. Mr Vosper is entitled to criticise not only the literary style, but also the doctrine or philosophy of Mr Hubbard as expounded in the books.

Counsel for the plaintiffs took yet another point. This was on the bulletins and letters. These, he said, were not published to the world at large, but only to a limited number of people and, in particular, to those who took classes in Scientology. He said that, whilst it might be 'fair dealing' to criticise the books, it was not 'fair dealing' to take extracts from these bulletins and letters and criticise them. He quoted again the words of Romer J in the British Oxygen case [5]:

'. . . it would be manifestly unfair that an unpublished literary work should, without the consent of the author, be the subject of public criticism, review or newspaper summary. Any such dealing with an unpublished literary work would not, therefore, in my opinion, be a "fair dealing" with the work.'
I am afraid I cannot go all the way with those words of Romer J. Although a literary work may not be published to the world at large, it may, however, be circulated to such a wide circle that it is 'fair dealing' to criticise it publicly in a newspaper, or elsewhere. This happens sometimes when a company sends a circular to the whole body of shareholders. It may be of such general interest that it is quite legitimate for a newspaper to make quotations from it, and to criticise them - or review them - without thereby being guilty of infringing copyright. The newspaper must, of course, be careful not to fall foul of the law of libel. So also here these bulletins and letters may have been so widely circulated that it was perfectly 'fair dealing' for Mr Vosper to take extracts from them and criticise them in his book.

It seems to me, therefore, that Mr Vosper may have a good defence of 'fair dealing' to raise at the trial.

2 Breach of confidence

Counsel for the plaintiffs claimed that Mr Vosper in the book was using information obtained in confidence and should be restrained from so doing. During the first part of the argument, I felt there was very little evidence to show that Mr Vosper was using any confidential information. But counsel pointed out that, in "the Mind Benders' there is a passage from which it can be inferred. In the book, Mr Vosper says at p 119:

'Owing to the restimulative nature of the materials comprising the Solo- Audit and Clearing Courses, there is a heavy security clamp on it. When a student enrols on these courses, he signs a declaration not to divulge to any non-Clear [that is one of Mr Hubbard's invented words meaning someone who is not a Scientologist] any of the data which is given to him. Insanity, severe illness and possible death is foretold for anyone who is not yet ready for it, who happens to even glance at the Solo-Audit or Clearing Course worksheets.'
In view of this, I think there is ground for thinking that Mr Vosper may have used information knowing that Mr Hubbard claimed it to be confidential. Nevertheless, he may have a good answer. We have had several cases in this court recently about confidential information. The law will, in a proper case, intervene to restrain a defendant from revealing information or other material obtained in confidence, such as trade secrets, and the like. This depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it: see Seager v Copydex [6]. But the information must be such that it is a proper subject for protection. As I said in Fraser v Evans [7]:
'There are some things which may be required to be disclosed in the public interest, in which event no confidence can be prayed in aid to keep them secret.'
In this case counsel for the defendants has drawn our attention to the nature of these courses for which confidence is claimed. The plaintiffs themselves say that: 'the material contained in these courses can be dangerous in untrained hands'. Counsel for the defendants took us through the books and said that they indicate medical quackeries of a sort which may be dangerous if practised behind closed doors. They are so dangerous, he said that it is in the public interest that these goings-on should be made known. The closed doors should be opened for all to c see. We cannot decide on it today, as this is only an interlocutory application. But, I think that, even on what we have heard so far, there is good ground for thinking that these courses contain such dangerous material that it is in the public interest that it should be made known.

3. Remedies

The judge fully appreciated that Mr Vosper might well have good defences; but, nevertheless, he granted an injunction to prevent him publishing the book. The reason was because of two decisions by judges of first instance. Donmar Productions Ltd v Bart [8] decided in 1964 but reported in 1967 and Harman Pictures N V v Osborne [9]. Those cases do seem to suggest that, in an action for infringement of copyright (and also it would appear in any other action for the infringement of a right) when a plaintiff seeks an interlocutory injunction, he has to do two things: first, he must establish a strong prima facie case that he owns the copyright or other right; but, secondly, having done that, he need only show an arguable case that the defendant has infringed it or is about to infringe it. In the words of Goff J in Harman's case [10], the plaintiff -

'does not have to show that he is likely to be successful or more likely to be so than the defendant, but only that he has a case reasonably capable of succeeding.'
We are told that practitioners have been treating these cases as deciding that, if the plaintiff has an arguable case, an injunction should be granted so that the status quo may be maintained. The judge was so told in the present case, and that is why he granted the injunction.

I would like to say at once that I cannot accept the propositions stated in those two cases. In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint on the defendant but leave him free to go ahead. For instance, in Fraser v Evans [11], although the plaintiff owned the copyright, we did not grant an injunction, because the defendant might have a defence of fair dealing. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.

But here, although Mr Hubbard owns the copyright, nevertheless, Mr Vosper has a defence of fair dealing, and, although Mr Hubbard may possess confidential information, nevertheless, Mr Vosper has a defence of public interest. These defences are such that he should be permitted to go ahead with the publication. If what he says is true, it is only right that the dangers of this cult should be exposed. We never restrain a defendant in a libel action who says he is going to justify. So in a copyright action, we ought not to restrain a defendant who has a reasonable defence of fair dealing. Nor in an action for breach of confidence, if the defendant has a reasonable defence of public interest. The reason is because the defendant, if he is right, is entitled to publish it; and the law will not intervene to suppress freedom of speech except when it is abused.

I would, therefore, allow this appeal and remove the injunction.


I agree. There are a few matters to which I wish to add some observations. First, I wish to say something with regard to the matter with which Lord Denning MR has dealt at the end of his judgment, in relation to interlocutory injunctions. I very much doubt whether the passage in Halsbury's Laws of England [12], cited by Ungoed-Thomas J in his judgment in Donmar Productions Ltd v Bart [13], was intended to state as a general proposition that different standards of proof are to be applied when the court considers, first, the question whether the plaintiff has a right, and, secondly, the question whether, if the plaintiff does have the right, that right has been infringed. It is true that in certain special cases one can approach the matter in that way. Suppose, for example, the plaintiff's claim for an interlocutory injunction is based on his contentions that he is the owner of a piece of land and that the defendant has trespassed on it. If the defendant does not dispute that the piece of land belongs to the plaintiff, then it may, in some cases, require only the slightest evidence on the part of the plaintiff of the fact that the defendant has gone on that land to entitle the plaintiff to an injunction. The defendant in those circumstances, if he has a defence at all, has a defence to the action only on the basis: 'I have not gone on that land.' In those circumstances there is no reason why an interlocutory injunction should not normally be granted against him if there is some evidence that he has in fact done so. But, to change the example, if the plaintiff's case is: 'You, the defendant, trespassed on my land', and the defendant's defence is 'True, you are the owner of that land, but you gave me a licence to walk over that land' - then, although the plaintiff's right in one sense is not disputed, in that he is the owner of the land, the question, and the whole question is: is there a licence? It may be that the onus of establishing that is on the defendant; but this is not a question of onus of proof. In such circumstances in my judgment it could not rightly be said that, once the plaintiff has established that he is the owner of the land, it only needs a mere possibility of success in connection with the assertion of the absence of a licence to entitle him as of right to an interlocutory injunction. It must be looked at on the whole of the case; the existence of the right and of any defences that are asserted in relation to the admitted existence of that right. In addition, one has to take into account the evidence of the alleged breach, the facts relating to the alleged breach, and even then there is no firm and invariable criterion which can be laid down on the basis of the prospects of success in the action because frequently one has to consider also the balance of convenience, as well as the status quo. One can readily imagine a case in which the plaintiff appears to have a 75 per cent chance of establishing his claim, but in which the damage to the defendant from the granting of the interlocutory injunction, if the 25 per cent defence proved to be right, would be so great compared with the triviality of the damage to the plaintiff if he is refused the injunction, that an interlocutory injunction should be refused. To my mind it is impossible and unworkable to lay down different standards in relation to different issues which fall to be considered in an application for an interlocutory injunction. Each case must be decided on a basis of fairness, justice and common sense in relation to the whole of the issues of fact and law which are relevant to the particular case.

Now I come to the first of the main issues in the present appeal; that is the question of the copyright. The principal submission by counsel for the plaintiffs, related to the construction of s 6 (2) of the Copyright Act 1956. As I understand his argument, it was that criticism 'whether of that work of or another work' (words used in that subsection) cannot be taken to apply to criticism which is criticism of something other than the work itself. That may be an acceptable proposition, but it is only an acceptable proposition when one has defined with reasonable clarity what is meant by 'criticism of something other than the work itself'. Counsel for the plaintiffs did not suggest that 'criticism' in this subsection was confined to what I would call literary criticism; that is to say, criticism of the style - the literary style - of the work in question. But if it is not confined to that, it must surely then cover criticism of the ideas, the thoughts, expressed by the work in question - the subject-matter of the work. What is the subject-matter of the works which are relevant in this appeal? The subject-matter of each of them is some facet of the doctrine, the practice, the training, and the code of ethics or discipline of this organisation, the Church of Scientology of California. To my mind there can be no doubt that the criticism contained in the book, 'The Mind Benders', is, on a fair reading, a criticism of that subject matter by reference, in part at least, to its exposition in those works. It is in that context that the quotations from those works are used.

It is then said that the passages which have been taken from these various works - in particular, from the one of them described as 'Introduction to Scientology Ethics' - are so substantial, quantitatively so great in relation to the respective works from which the citations are taken, that they fall outside the scope of 'fair dealing'. To my mind this question of substantiality is a question of degree. It may well be that it does not prevent the quotation of a work from being within the fair dealing subsection even though the quotation may be of every single word of the work. Let me give an example. Suppose that there is on a tombstone in a churchyard an epitaph consisting of a dozen or of 20 words. A parishioner of the church thinks that this sort of epitaph is out of place on a tombstone. He writes a letter to the parish magazine setting out the words of the epitaph. Could it be suggested that that citation is so substantial, consisting of 100 per cent of the 'work' in question, that it must necessarily be outside the scope of the fair dealing provision? To my mind it could not validly be so suggested. In this present case, having considered what we have been shown of the passages taken from the various works in relation (because I think this test must also be applied) to the nature and purpose of the individual quotations, I find myself unable to say that the plaintiffs have made out a case that the quotations are so substantial that this does not fall within the fair dealing provision. To my mind the plaintiffs have failed to establish to the required degree, in relation to an application of this sort and in relation to all the other factors that have to be taken into account, that they ought to be granted an interlocutory injunction in relation to the alleged breach of copyright.

I turn to the question of confidentiality. Lord Denning MR has referred to one passage which occurred in some of the documents put before us in relation to 'fair game'. I think it is right, in fairness to the plaintiffs, that it should be said that it would seem that that particular provision has disappeared from the latest, or 1970, edition of the book 'Introduction to Scientology Ethics'. It is right in these circumstances that something should be said about the history of that provision. So far as the documents before us are concerned, it appears chronologically for the first time in what is described as the 'Hubbard Communications Office Policy Letter of March 1, 1965', under the heading, 'Justice. Suppressive Acts. Suppression of Scientology and Scientologists. The Fair Game Law'. That document defined 'Potential Trouble Sources'. They were persons who were active in Scientology, or persons known as 'preclears', who remained 'connected to a person or group that is a suppressive person or group'. A 'suppressive person or group' is then defined in the document as 'one that actively seeks to suppress or damage Scientology or a Scientologist by 'Suppressive Acts'. 'Suppressive acts' are then defined as 'acts calculated to impede or destroy Scientology or a Scientologist and which are listed at length in this policy letter'. I should refer to some of these 'suppressive acts', the carrying out of which turns a person, for the purpose of this document, into a 'suppressive person or group'. 'Suppressive acts' include 'proposing, advising or voting for legislation or ordinances, rules or laws directed toward the Suppression of Scientology . . .' So that if a voter in this country were to have the temerity to cast a vote in a Parliamentary election for a candidate who had indicated that he was minded to propose legislation which would 'suppress' Scientology, that person would be guilty in the eyes of this organisation of having committed 'a suppressive act'. Again, 'testifying hostilely before state or public enquiries into Scientology to suppress it'; 'reporting or threatening to report Scientology or Scientologists to civil authorities in an effort to suppress Scientology or Scientologists from practising or receiving standard Scientology'; 'bringing civil suit against any Scientology organisation or Scientologist including the non-payment of bills or failure to refund without first calling the matter to the attention of the Chairman . . .'; 'writing anti- Scientology letters to the press or giving anti-Scientology or anti- Scientologist evidence to the press'; 'testifying as a hostile witness against Scientology in public'. If words mean anything, that meant that in the eyes of this organisation a person became 'a suppressive person' - 'a suppressive person' guilty of a suppressive act - if, however truthful, however much compelled by process of law, he should give evidence in a court of law hostile to the organisation of Scientology. And this is the organisation which is seeking to have its documents treated as confidential by the order of the court. It went on to include among 'suppressive acts': '1st degree murder, arson, disintegration of persons or belongings not guilty of suppressive acts'. There can be no doubt that the last five words relate to the preceding word 'persons'. What does that mean? That it was, in the eyes of this organisation in 1965, 'a suppressive act' to be guilty of 'first degree murder', provided that the person you murdered had not been guilty of suppressive acts. The implication is obvious. Yet another 'suppressive act' is, 'delivering up the person of a Scientologist without defense or protest to the demands of civil or criminal law'.

In the 1968 edition of 'Scientology Ethics' those provisions remain substantially the same, and they continue at that date to include the 'fair game' provisions which I have mentioned as having been included in the 'Justice policy' document of 1965. In those years it was provided that suppressive persons or groups became 'Fair Game':

'... by Fair Game is meant, without rights 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".'
Well, it may be that there is or was some explanation of that general provision, as of the related 'first degree murder' provision, which will take away from it the meaning which to any ordinary person it would carry; namely, that here was an organisation which had laid down a criminal code of its own and by that criminal code it treated and required its adherents to treat, persons as outlaws deprived of any protection or sanction so far as the Scientological organisation was concerned if they had been guilty of 'suppressive acts', and no Scientologist was to be condemned, under the ethical code of Scientology, for any action - I repeat any action - which he might take against such 'fair game'. It is right that this should be mentioned: in the latest edition of the Scientology Ethics, which appears to have been published in the year 1970, the provisions as to 'fair game' have now been removed from its code of ethics.

Most of the matters which I have mentioned earlier, as being examples of 'suppressive acts' still remain as 'suppressive acts'. They come under the heading: 'High Crimes (Suppressive Acts)'; but the provisions as to 'fair game' have disappeared from the code. One other respect in which 'suppressive acts' have changed since the original policy document is this; the last five words have disappeared from that extraordinary example of a 'suppressive act': '1st degree murder, arson, disintegration of persons or belongings not guilty of suppressive acts'. So that the Scientology organisation has now changed its provisions, from those that previously prevailed, in such a way that 'first degree murder' may now apparently be regarded as a crime within this organisation, even though the murderer is a Scientologist, and even though the victim is one who, in the eyes of the organisation, has committed a 'suppressive act', such as having written a letter to a newspaper adversely criticising Scientology.

Having regard to the matters which we have seen and, bearing in mind counsel for the plaintiffs' observations that he came to this court unprepared to deal with matters of that sort, to my mind it is here sufficiently clear that, whatever explanations may be given, assuming that the words used in relation to 'suppressive acts' mean what they on their face appear to mean, counsel for the defendants is more than abundantly justified in his proposition that there is here evidence that the plaintiffs are or have been protecting their secrets by deplorable means such as is evidenced by this code of ethics; and, that being so, they do not come with clean hands to this court in asking the court to protect those secrets by the equitable remedy of an injunction.

For the reasons which I have given and for the reasons which have been given by Lord Denning MR, I agree that this appeal should be allowed.


I entirely agree. I would only add one further consideration in favour of refusing the plaintiffs the injunction which the judge granted. Damages appear to me to be an adequate remedy for any breach of copyright or confidence which may be proved at the trial; indeed any damage which the publication of Mr Vosper's book may cause to the plaintiffs is less likely to result from what he quotes from their literature or discloses from their material than from the criticism which Mr Vosper makes of them and of their cult of Scientology as a whole.

Appeal allowed; injunction removed. Leave to appeal refused.

9th February 1972. The Appeal Committee of the House of Lords dismissed a petition for leave to appeal.


Davidson, Doughty & Co (for the defendants);
Lawrence Alkin & Co (for the plaintiffs).

L J Kovats Esq Barrister.

[a] Section 6 (2) is set out at p 1026 f, post

[1] [1892] 3 Ch 489
[2] [1916] 2 Ch 601
[3] [1934] Ch 593
[4] [1925] Ch 383 at 393
[5] [1915] Ch at 393
[6] [1967] 2 All ER 415, [1967] I WLR 923
[7] [1969] 1 All ER 8 at 11, [1969] I QB 349 at 362
[8] [1967] 2 All ER 338n, [1967]I WLR 740n
[9] [1967] 2 All ER 324, [1967] I WLR 723
[10] [1967] 2 All ER at 336, [1967]I WLR at 738
[11] [1969] 1 All ER 8, [1969] I QB 349
[12] 21 Halsbury's Laws (3rd Edn) 365, 366, paras 765, 766
[13] [1967] 2 All ER at 338, 339, [1967] I WLR at 741

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