The case and the judgment are a classic battle between the rights of freedom of speech expression and the rights to preservation of one's reputation and good name, privacy, and family life.
Neither right is absolute. The court has to balance competing and sometimes contradictory rights.
The judge came down on the side of the McCanns and their right to the preservation of their reputation.
One aspect of the case that 'Alby' discusses is the legal principle of 'periculum in mora'. In order to provide a better understanding of Alby's translation and analysis, here is a good working definition I have found of this legal principle:
The 'periculum in mora' requirement means that the claimant [McCanns] has to prove that the activity of the alleged infringer [Amaral] – of which he has not approved - is already causing significant damage to the claimant’s rights, and that the long delays that usually occur in civil proceedings before a final decision is issued at First Instance [i.e. the final troal date in the Lisbon court] , may result in the final judgment lacking effect.
In this case, winding the clock back to September 2009 when the original judge banned Amaral's book, the judge on that occasion clearly decided that too much damage was being unfairly done to the McCanns and their three children (see below) to allow Amaral's book to be sold any longer.
I am open to correction, but I think that September 2009 hearing was made 'ex parte', i.e. only the McCanns' lawyers being present. Cases are only held 'ex parte' in the U.K. if there is a real and immediate risk to the claimant. There is no way this case would have been heard 'ex parte' in this country, especially considering that by that time Amaral's book had already been on sale for 15 months, hundreds of thousands had read it, and millions more had seen the TV programme or watched the DVD or seen either on YouTube etc.
The judge in the January and February 2010 hearings merely decided that there were no good grounds for interfering with the September judge's decision.
Against that introduction, here is PART ONE of Alby's translation:
ALBERT MOISIU'S TRANSLATION, downloaded from Pamalam's site
At the outset, it is my understanding, and I am sure the reader will understand similarly, that the court document is itself a summary; one that was produced by the presiding judge and her aides, containing only those points arising from hearing papers/documents collected and collated by the Court from the previous injunction hearings in 2009, open-court sessions, private discussions, correspondence and
submissions between and by all parties, that the judge deemed to be pertinent to the matter before her.
It also contains her legal cogitations so that they may reviewed and assessed by superiors, peers and subordinates alike, especially in the event of an appeal to a higher authority. Finally, it ends with her decision which, she hopes, will be seen to flow naturally from what went before.
It is not a replica of everything that occurred before and during the hearings. It is her assessment of what she heard and read, and her extraction and summation of what she believed to be relevant.
It starts with section I – Report in which the Applicants are named as the five members of the McCann family in the following order (which is important to remember) – the two parents, the missing child, the remaining two children – along with the four Respondents - Goncalo Amaral, Guerra e Paz Publishers, Valentim de Carvalho films and media, and TVI Independent Television – in that order.
Applicants' allegations [McCanns' allegations]
The Applicants allege that the theory contained in the book written by the first Respondent, published by the second, turned into a video by the third, which video was broadcast on television by the fourth, violates various [legal] rights of all the Applicants and causes them to fear future serious and irreparable injury/ damage [in the legal sense; not physically].
The rights enumerated are:
a) the rights of the third Applicant [the missing child] to her moral and physical integrity and to a fair and adequate future investigation into her disappearance;
b) the rights of the remaining children to their moral and physical integrity and to a fair and adequate future investigation into the disappearance of their elder sister, as well as their right to a private life and to the good name of the family to which they belong, and their right to freedom and security;
c) the rights of the parents to their image, good name, good reputation and to the preservation of the integrity of their private life, the right to freedom and security, the right to their moral integrity, the right to not be treated in a degrading, cruel or inhuman manner, the right to the fruits [use?], like any citizen, of the guarantees of the penal process.
The document goes on to repeat the six provisions of the temporary injunction decision from the earlier hearing in September 2009 at which the Respondents had not been heard, and then proceeds to outline the main arguments of each Respondent against those six provisions.
Respondent 1 opposition [Goncalo Amaral, the publishers and the documentary-makers
Goncalo Amaral's main arguments were that he was incorrectly included in the provision pertaining to cession of publishing and author rights because his rights thereto had already been ceded by contract to the second and third Respondents; that the terms of the injunction were so wide and vague as to preclude him from speaking about the official inquiry as well any matter relating to it that had already been disseminated through the media; that he had never said the missing child's parents had killed her and hidden the body, rather that he defended that there had been suspicions of involvement in the hiding of their daughter's body; and that at the date he was removed from the case the investigators had formed the opinion that the child had died in the apartment, that an abduction had been simulated and that the parents were suspects in the hiding of the body.
He closed by asking for the provision that prevented him from stating his opinion about the child's death and from speaking about the "Maddie case" investigation to be adjudged unconstitutional, and that the entire injunction be revoked as being without foundation.
Respondent 2 opposition
The main thrust of the publisher's opposition to the injunction lay in the fact that former police inspectors had, and continue, to write about police investigations and cases; that information about the "Maddie case" was widespread around the world in books – through various publishing houses – in newspapers and in Internet websites, including international sites on which books may be bought, exchanged and sold; that the Applicants' own website had displayed the same theory as that contained in the book; that his company held authorisation to publish the photographs contained in the book; that there was no contract between his company and the other two Respondent companies with respect to the DVD or video broadcast; that the book had been published for more than a year, and the language variants for many months, such that any capacity they might have had to cause any damage had long since passed; and that through the Fund established by the parents work was currently ongoing to find out what had happened and to determine the whereabouts of the child.
Finally, it concluded with a request for the temporary injunction to be revoked and the impounded books returned.
Respondent 3 opposition
Aside from technical issues pertaining to the video itself, the video producer/distributor arguments included assertions that neither the book nor the video stated that the missing child had been killed in the apartment or that the parents had hidden her body, rather that both conveyed that the police officers in the disappearance investigation up to the date of October 2007 had held suspicions that the child had died and that the parents were suspected of being involved in hiding the body of their daughter.
The arguments continue with explanations that the foundation of those suspicions are contained in the official case file, the content of which was digitised and distributed to the general media, foreign and domestic, for them to disseminate that information, and that the video concludes with the following statement:
"The mystery persists; the former inspector believes that one day the truth will be known. At this time we know only that Madeleine Beth McCann disappeared from Praia da Luz on 3 May 2007. She was 3 years old and a happy child."
They ended with a request for the injunction to be revoked.
Respondent 4 opposition
The arguments from TVI were extensive and intensive beginning with an invocation of Article 37 (freedom of speech) of The Portuguese Constitution and a statement that the boundaries defined therein had not been exceeded; that it's sole intention in broadcasting the video had been to inform the public and to clarify aspects of the case; that it had made no judgement, comment or observation with respect to the theory of the first Respondent nor to that of the Applicants that their daughter was found gone and had been abducted from the bedroom where she had been sleeping with her siblings.
The full preamble to the TVI screening of the video is included in their submission to support their above argument:
"The program that follows is a documentary based on the book of Gonçalo Amaral, former PJ inspector who investigated the disappearance of Madeleine MacCann [sic] in the Algarve. His version of events is repudiated by the parents of Maddie who continue to defend that it be treated as a case of abduction.
"The criminal case constructed by the Portuguese authorities ended with the archival of the inquiry, a decision contested by Gonçalo Amaral.
"Not pointing to those responsible, a task incumbent upon Justice [*], the broadcast of this documentary is intended to contribute to enlightenment about the case that remains a mystery to be unveiled, after almost two years, and to facilitate [make available] things that help in its understanding on the part of public opinion."
[*] The word 'justiça' here may be an unintended play on words having the possible double-meaning of 'judicial authorities' and 'natural justice'.
TVI go on to point out that the parents themselves, in collaboration with UK TV Channel 4, produced a 60-minute documentary entitled "Still Missing Madeleine" about their version of events relating to the disappearance – including, with the assistance of private detectives, their reconstruction of the night in question - which was licensed by Mentorn International to TVI for one year between 7 May 2009 and 6 May 2010. TVI had scheduled the program to be broadcast to show the public that there were various versions of the same events, but on 23 April 2009 Mentorn advised TVI that they would not comply with the agreement, confirming this in writing on 5 May 2009, due to instructions having been received from the McCann family that the documentary should not be licensed to TVI. Instead, it was subsequently broadcast in Portugal on 12 May 2009, by SIC [a second independent TV channel], after having been broadcast previously in UK.
It was argued that the Applicants have easy access to national and international media through which they have profusely transmitted their theory of the events of the night of 3 May 2007, one example being the Oprah Winfrey interview broadcast in Portugal, also by SIC, on 4 May 2009 and again on 12 May in which the parents, once again, put forward their theory about that fateful night and once again launched an appeal, revealing new facts about their private investigations.
The arguments conclude with a request for the revocation of the injunction.
The judge's report proceeds with her summary of the Applicants' rebuttal of the above
With respect to Goncalo Amaral they make some technical legal points about his right as an author and the content of the contract with VC Filmes, otherwise dismissing the rest as being nothing new.
With respect to the publisher they argue that the book had been ready for publication since April 2008, and, regarding the Internet blogs, they allege that the publishing company knew the author of the blog that had appropriated the name of the father. They adduced further that, through things observed on the Internet, it was clear that that site had nothing to do with the parents.
On this point they request an official condemnation of the publisher as a 'bad faith litigant' and recompense as defined in Civil Process Code (CPC) Article 457.
[NOTE: For anyone interested in further reading, the 'Notion of Bad Faith' is defined in CPC Article 456 and it is interesting to note that the request does not explicitly stipulate which of the conditions in that Article were applicable, in their view, in this instance.]
The rebuttal of TVI was simply that there was nothing new.
With VC Filmes they again raised a technicality on cession of rights and raised a further request for a 'bad faith litigant' condemnation and recompense, in this instance being specific in alleging the omission, distortion and confounding facts relevant to the matter in question, citing documents which were available to the judge and parties, but not to us.
Respondent counter arguments
The report continues with the Respondent counter-arguments to the Applicants' rebuttal and the 'bad faith' requests:
VC Filmes responded simply that there can be no possible confusion arising from the use of the universally recognised symbol for copyright, namely '©'.
The publisher responded than insofar as the blogs were concerned they are authored by the Applicants or by someone with their knowledge and approval given that the Applicants had done nothing to prohibit them.
Supplementary hearing: separate document
At this point there was a supplementary hearing, possibly a 'side bar' or probably 'in chambers', on the above matters. This hearing was recorded in a second document, the essence of which was firstly:
– a recapitulation of the 35 points of the Applicants' submission to the Court;
– seven points from Goncalo Amaral's arguments, with the judge concluding that it had not been proven that the parents had opposed the official reconstruction;
– six points from the publisher's arguments, with the judge concluding that it had not been proven that the parents had agreed to the publication of the Portuguese version and an English translation of Goncalo Amaral's book on an Internet website;
– eighteen points from the VC Filmes' arguments, with the judge concluding that it had not been proven that the excess number of [video] DVD copies had been destroyed by 'Presslivre' with the agreement of 'VC Multimedia', nor that at the date VC Filmes had been notified of the terms of the temporary injunction there
had been no residual copies of the video in any other repository or warehouse;
– twelve points from TVI's arguments, there being no reservations expressed by the judge on those points.
[Note that all these points are enumerated in Section II of the main document below, so I have not written them out in detail here]
Other than those unproven matters above, everything else was not considered to be relevant to the matter before the court. The supplementary hearing document proceeds with a statement from the judge that the Court formed its opinion from a critical analysis of the documents in conjunction with witness testimony, specifically those segments which revealed direct [first-hand] knowledge of the things about which they were questioned, which segments are then enumerated:
– from magistrate Jose Cunha de Magalhaes e Menezes it was found that a DVD divulged all pieces of the Inquiry, with certain limitations; he spoke of several diligences carried out during the inquiry; he had not read the book written by the former Inspector; he had seen part of the documentary based on it; he explained
passages from the archival statement issued by the Public Ministry, as well as what had rendered the official reconstruction infeasible.
– From serving PJ Inspector Vitor Manuel Tavares de Almeida certain inquiry work and official statements were confirmed; he had read the book of the first Respondent stating that its conclusions were the same as his, taking into account the history of the investigation, which [investigation] was far from complete;
– Serving PJ Inspector Ricardo Manuel Goncalves Paiva had been involved in the inquiry from beginning to end; he had been a link with the family due to his fluency in English; he had read the book stating that what is in the book is in the inquiry; he noted that they continue to receive information for the case file;
– Serving head of the national anti-terrorism unit, Luis Antonio Trinidade Nunes Neves, had been asked by the head of the national directorate of the PJ to support their efforts; up until the parents were made arguidos he had been in the Algarve on a regular basis; he had participated in meetings with English colleagues; he
had read a few passages of the book, finding them to be no different from those in the case file;
– Francisco Moita Flores, former murder and armed robbery Inspector of the PJ, noted commentator on crime, and friend of the first Respondent had read the case file, facilitated by journalists, as well as the book written by Goncalo Amaral;
– Jose Manuel Morais Anes, retired senior criminalist from the Police Science Laboratory, had skimmed the book and had no knowledge of the case file; he had watched the video; he expressed some opinions about the case, from a forensics perspective, particularly the failure to isolate the crime scene;
– Mario Rui da Silva Sena Lopes, editorial manager for the publisher from July 2007 to September 2009, clarified questions regarding the choice of date to launch the book, foreign editions and destruction of books; he stated that negotiations for the book began in the first trimester [quarter] of 2008;
– Tania Patricia Almeida Raposo, public and commercial relations [officer?] of VC Filmes for three years, worked on the communication of the book that was sold through Correio da Manha, and clarified questions about the choice of date to launch the book;
– Antonio Paulo Antunes dos Santos, lawyer and director-general of the Federation of Video Publishers developing anti-pirating methods to protect authors' rights since 1991, was in the PJ from 1980 to 1991, and was a colleague of Goncalo Amaral; VC Filmes is part of the above Federation and holds around 98% of the
market share [presumably in Portugal]; he read the book and saw the documentary, considering that the latter is based on the former; he had read parts of the inquiry on the Internet;
– Carlos Jose Correia Coelho da Silva, film director, having a contract for that service with VC Filmes since June 2007, clarified that the documentary is an adaptation of the book and that the theory of Goncalo Amaral is the theory adapted by the journalist [screenwriter?] who works for him; the adaptation was supported by Goncalo Amaral; he clarified that VC Multimedia, not VC Filmes, is the commercial arm of the VC Group; he had not followed the case file in this job;
– Luis Manuel de Oliveira da Cunha Velho, Director-Coordinator of Programmes at TVI since September 2009, previously holding a different position for ten years, clarified that TVI bought rights from VC Filmes and played no part in production;
– Paulo Jorge Gomes Concalves Soares, Manager of Market Studies at TVI for four years, attempted to acquire the English documentary referring to the written pre-agreement 'memo deal';
– Ana Margarida Ferreira Victoria Pereira, Manager of International Programmes at TVI for 15 years, was part of the negotiations for the English documentary;
– Luis Torre do Valle Froes, General Manager of VC Filmes since April 2008 had not read the book, knowing only the documentary was produced by VC Filmes and edited and sold by VC Multimedia; that VC Filmes had ceded editing rights to VC Multimedia, and mandated 'Valentim de Carvalho' [presumably the parent
company of the Group] to market internationally for television broadcasting; he clarified the situation regarding the pirated copies of the documentary on the Internet;
– Eduardo Jose Campos Damaso, Correio da Manha journalist specialising in the area of Justice and Communication, limited himself to making comments about other books written about questions relating to Justice.
The judge continued by giving her assessment on certain points, stating at the outset that the Court had seen [had read?] all the documents in the official case file designated Inquerito 201/07.0GSLGS, either on CD or DVD.
From the [Court's] analysis of the depositions and documents [in the case file], nothing was found that should cause the facts already in the injunction to be altered.
Concerning point 1 of the injunction [Applicants' allegations], the testimony of the 'Guerra e Paz' witnesses, along with the contract included among the hearing documents, exceed the limit of redaction of the article.
[I read this as meaning that Court is satisfied that the publisher was fully involved at all stages of the book publication, and not acting merely as a proof-reader/book printer/book distributor in a manner similar to a self-publication/vanity press publication. Therefore, the term 'sob edição de' – 'published by' – is correct, thus fully validating point 1 which might, otherwise, have been in question.]
Concerning point 35 of the injunction [Applicants' allegations], the witness testimony was not sufficiently convincing to cause the alteration of the opinion previously formed by the Court.
Point 35 is that in which the Applicants alleged that (1) the Respondents intended to profit from the global distribution of the book and [video] DVD – [which part is true and probably unassailable] – which (2) deepened the suffering of the parents and (3) made more difficult [impeded] the searches for the third Applicant.
[The judge revisits this point below in Sub-section E of the main document.]
The next sentence continues on the same subject but, while the individual words are relatively straightforward, I admit to having difficulty with its intended meaning other than to say that it appears to me to be a gentle instruction from the judge to the Respondent legal teams about how to word legal argument. I translate it literally as:
"Only if it was written in a manner different from what it appears so/such that it remained clear that there was no intention to increase the suffering of the Applicants or to prejudice the investigation.
"The judge moves on to say that there does not appear to be anything contained in the Inquiry case file that shows that the parents were opposed to coming to Portugal for the official reconstruction.
Turning again to the Internet website put forward by Guerra e Paz, she says that it does not appear to be authored by the parents, there being documents in the hearing papers that contradict that this is so, despite the suggestive name [of the website].
Finally in the supplementary hearing document, the judge refers to the self-imposed limitations in Luis Froes' testimony in which, regarding the destruction of the excess numbers of video DVD, "he refers to what had been said to him by someone" at Presslivre, she found it difficult and risky to conclude that at the date on which VC Filmes were notified of the injunction there had been no remaining copies of the DVD in any other repository or warehouse.
[End of the section "I - Report" of the decision document, and of the supplementary discussion document.]
TO BE CONTINUED IN PART TWO
- Posts : 13972
Reputation : 2147
Join date : 2009-11-25
Age : 69
Location : Harlow, Essex
The second section of the decision document –
II - The Facts -
...is given over to the recapitulation of the facts that the judge considered relevant; essentially a repetition of those points specified in the supplementary document above, but without her analysis.
It begins with 35 points raised by the Applicants:
1. On 24 July 2008 the first Respondent launched his book, published by the second Respondent, "Maddie: A Verdade da Mentira".
2. In this book he puts forward a five-point theory (quoted from the book) that (1) Madeleine McCann died in the Ocean Club apartment in Luz on 3 May 2007; (2) an abduction was simulated; (3) the parents are suspected of involvement in the hiding of the body of their daughter; (4) the death could have resulted from a tragic accident; and (5) there are indications of negligence with respect to the protection and safety of the children.
3. The book had four editions by the end of July 2008, nine edition by the end of August 2008 and 12 editions by the end of September 2008.
4. Each edition had 10,000 printed copies.
5. The book was sold-out in practically every point of sale.
6. Additionally, the first Respondent had given interviews to all organs of the public press who asked him, specifically RTP, in which he defended the theory put forward in the book.
7. Among others he gave an interview to the Correio da Manha newspaper, published by them on 24 July 2008, in which he defended the theory.
8. At the beginning of May 2009 a version of the book was published in France.
9. He gave innumerable interviews to various organs of the public press in France, among which his account was published in 'Le Parisien' newspaper and on their electronic [Internet] website.
10. In the interviews he again stated his theory.
11. The French edition was systematically and profusely published on the Internet, at least in seven websites [cited in the document].
12. Between 24 July 2008 and May 2009 a television programme was produced by the third Respondent and broadcast by the fourth Respondent in which broadcast rights were reserved.
13. The first broadcast was on 13 April 2009.
14. The second was on 12 May 2009.
15. It was broadcast in Portugal on at least those two occasions.
16. That programme/video was intrinsically based on the book.
17. In the video the first Respondent sustained his theory that the third Applicant is not alive, that her death occurred in the Ocean Club apartment and that her parents, the first Applicants, had hidden the body of their daughter.
18. At least 2.2-million people watched the first broadcast.
19. At the end of April 2009 began the commercialisation of the DVD containing this programme.
20. 75,000 copies of that DVD have already been disseminated for sale.
21. The DVD is advertised, at least, on the website of the third Respondent.
22. The first Applicants are married to each other and are the parents of the third, fourth and fifth Applicants.
23. The criminal investigation in which the first Applicants were made arguidos was archived, a copy of which statement is attached [to their original submission to the Court].
24. Madeleine Beth McCann disappeared on 3 May 2007.
25. On the Internet appears information about the first Respondent that says he is honest, upright, socially acceptable, destined for a position in politics.
26. The first Respondent is a media-aware person.
27. The information in (25) above states that he is professionally and technically trained and qualified in judicial and criminal science, and was a PJ officer/inspector for 27 years.
28. He understands the meaning and import of an archival of a criminal case.
29. He knows who holds authority over an official inquiry, who may open or re-open it and under what circumstances.
30. He knows what is defamation and [legal] injury.
31. He knows what it means not being in the criminal investigation service.
32. He has professional expertise and is of adult age.
33. Through his divulging the events of 3 May 2007 in Praia da Luz, with help from the other three Respondents, he saw himself promoted [socially] and earned money.
34. He has intentions to pursue a political career.
35. The Respondents intend to disseminate the book and the DVD world-wide, gaining financially, commercially and socially, which deepens the suffering of the first two Applicants and makes more difficult [impedes] the searches for the third Applicant.
Collectively opposing the injunction are 43 points:
1. The [first] Respondent was the Coordinator of the Investigation of the "Maddie Case" from 3 May, acting in this capacity, under Inquiry 201/07.0GALGS, for the Lagos Public Ministry until the date on which he was withdrawn from the case on 2 October 2007.
2. He resigned from service on 1 July 2008.
3. At the date he was withdrawn from the case, it was known to the Respondent that some investigators had formed the opinion that Madeleine McCann had died in the apartment.
4. The investigative work that the Respondent reports in the book and the documentary is contained in the inquiry case file.
5. The inquiry case file was made available in digitised copy, specifically to the public press, national and international, who undertook to disseminate it, granting them knowledge of it for public and universal commentary and discussion.
6. Any person has access to those facts and to the documents of the case file as was ascertained, on the Internet, at the distance of a 'click'.
7. The witness friends of the Applicants did not make themselves available to appear in Portugal for a reconstruction of events, as was determined from the procurators' note on pages 4636 to 4638 of Volume XII of the Inquiry.
8. In terms of the publishing contract between the first and second Respondents, the first temporarily ceded to the second the author's ownership rights while the work was a book.
9. The book was published, through other publishing companies, in several countries and languages (besides France) as stated in point 8 of the injunction, namely: in Spain(Sept 2008), Denmark (Nov 2008), Italy (Dec 2008), Netherlands (April 2009), Germany (June 2009) also being made available for sale in Austria and Switzerland.
10. An English version, along with a Portuguese version, was in circulation on an Internet website.
11. The first Applicants cited on their own website the theory of the first Respondent.
12. The newspaper Correio da Manha, on 3 October 2007, published an article entitled "Maddie, the diary of a mystery".
13. Through the Fund created by the parents work is being performed that is considered convenient [timely; opportune] to obtain leads about what happened and to determine the whereabouts of the third Applicant.
14. In the first trimester (quarter; three months) of 2008 VC Filmes learned that the first Respondent was writing a book, the publication of which was to occur in the first semester (two months) of the same year, described as objective and factual and as revealing facts, unknown at the time, of the investigation which he had led into the disappearance of Madeleine McCann.
15. VC Filmes made known to the first Respondent it's interest in the audiovisual adaptation (both documentary and fiction) of that book.
16. With him, it agreed the cession and exclusive right to adapt the book as a documentary or fiction that could be exploited in various ways.
17. The author of the book was obliged [obligated] to be the narrator of the documentary.
18. He ceded to VC Filmes all content ownership and rights as author and narrator, specifically with respect to the full exploitation of the documentary.
19. VC Filmes ceded to the fourth Respondent the rights to broadcast the documentary on Portuguese television.
Points 20 through 25 all concern legalities regarding the cession of various rights between various companies.
26. 75,000 copies were made of the video DVD.
27. The DVD was sold along with the 24 April 2009 copy of Correio da Manha.
28. Only a small quantity of the DVD was sold, some 63,369 copies having been destroyed by the company "Presslivre".
29. [Repeating point 5 above] The inquiry case file was made available in digitised copy, specifically to the public press, national and international, who undertook to disseminate it, granting them knowledge of it for public and universal commentary and discussion.
30. [Repeating point 6 above] Any person has access to those facts and to the documents of the case file as was ascertained, on the Internet, at the distance of a 'click'.
31. The documentary was put out and subtitled in English by third parties who spread it on the Internet without the authorisation and against the will of VC Filmes.
32. The first two Applicants, in collaboration with British TV Channel 4, also made a documentary about the disappearance of the third Applicant which conveyed their version of events that happened in Praia da Luz in May 2007.
33 This work, a 60-minute documentary entitled "Still Missing Madeleine", was the object of a preliminary agreement in which Mentorn International granted a licence to TVI for the exclusive rights in Portuguese territory between 7 May 2009 and 6 May 2010.
34. Negotiations on this agreement began prior to the first broadcast of the documentary based on the first Respondent's book, and had been duly recorded in writing in the form of a "deal memo" (business memorandum) signed by both parties on 15 April 2009.
35. TVI scheduled the broadcast of this documentary in a manner to complement that of the first Respondent so as to show to the public the different versions and possible explanations of the same events.
36. On 23 April 2009 TVI was informed by telephone that Mentorn would not comply with the above preliminary licence agreement, which [call] was confirmed in writing on 5 May 2009.
37. The reason given by Mentorn was that the McCann family have given instructions that it did not want the programme licensed to TVI.
38. The documentary that portrays the version of events defended by the Applicants was broadcast on 12 May 2009 on [the Portuguese TV] channel SIC, having been aired previously in the UK.
39. That documentary explains, with the help of private detectives, the version of events defended by the Applicants and shows a reconstruction of the night on which Madeleine McCann disappeared.
40. The first Applicants have easy access to national and international media, having granted an interview on the North American television show "Oprah" that was aired in Portugal, also by SIC, on 4 May 2009 and again on 12 May.
41. That programme was transmitted to the entire world through satellite and cable TV.
42. In that programme the parents, once again, explained their theory about the fateful events on the night of 3 May 2007 and launched once again an appeal to their search, revealing new facts about their private investigations.
43. In the documentary presented by SIC the Applicants reveal at least one more new witness, reconstructions and [E-fit] portraits that reinforce the abduction theory.[End of section II - Os Factos]
The penultimate section – III – The Law –
...runs from page 21 to page 43 of the decision document.
As much as I admire the efforts of the judge and her aides in terms of the work applied, I cannot bring myself to render anything more than a summary of the main points with an occasional translation.She has divided this section into seven sub-sections, (A) through G).
In sub-section A...the judge believes that "it falls to her to define the ambit of the injunction with respect to the consequent principal action."Rather than me trying to interpret her words, the reader is encouraged to enter the search terms 'Injunction', 'fumus boni juris' and/or 'periculum in mora' into any Internet search engine to find an abundance of texts and case argument already in English and other languages that describe the basic nature and purpose of this legal instrument.
An important aspect of Portuguese civil law explained by the judge is that a successful injunction, in addition to a principal action, requires there to be (a) the 'appearance of a right' in existence (fumus boni juris) and (b) that that right is under threat from a danger (periculum in mora) that is both reasonable (founded) and real.
The judge states that while the 'appearance' of a right requires the merest suggestion or probability that one exists [as opposed to some jurisdictions in which the existence of a right has to be fully proven], the determination of a 'reasonable and real' threat requires a judgement on the probability of what is most strong and convincing.
As we shall see towards the end of this third section, her determination of the reasonableness and reality of a threat in this case was not based solely on the prior actions of the Respondents, nor the likelihood that such actions from them would continue if not stopped, but in this sub-section at page 23 she draws our attention specifically to the situation that actions prior to the implementation of an injunction make the probability of similar actions in the future more likely and more certain than if such previous actions had never occurred.
Sub-section B...makes the legal point that persons opposing an injunction have the right to be heard, in the first instance. When (as in this case) they are not heard in an original hearing then a separate hearing is opened to re-examine the Court's previous conviction [determination] through the introduction of new information or facts of which the court could not be aware.
The three possible outcomes of such a re-examination are
(a) to maintain the existing injunction – in the case where the new factual/evidential argument is insufficient to alter the previous determination;
(b) to revoke the injunction – in the case where the new information/facts are clearly superior to those previously presented; or
(c) the modification of the terms of the existing injunction, reducing them to a level that strikes an appropriate balance given all the information/facts to hand.
TO BE CONTINUED IN PART THREE
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Sub-section C...takes us through the judge's initial thinking on the differences between the rights being contested by each of the parties. That she sees the rights as being different is, in itself, an important factor in Portuguese civil law. [ref. CPC Article 335]
The Applicants all assert that various 'personal' rights are under threat. The rights enumerated on page 1 above are repeated here in the court document.The judge acknowledges that the right to physical integrity is not in question, and that there is no evidence that [any of] the Applicants have been treated in a degrading, cruel or inhuman(e) manner [by the Respondents].
The other rights, therefore, are those to be considered, namely, the right to a private and family life and personal image and good name, and the right to the use and guarantees of the penal process, particularly to a fair investigation, to liberty and security.
The first impression from the theory put out by the Respondents is that it has raised in the mind of the public suspicions about the involvement of the parents in criminal activity, and conclusions on pages 220-221 of the book 'A Verdade da Mentira' are cited.The judge then proceeds to cite several pages from the case file DVD, beginning with p4531 and pp4582-4583 of the final police report (pp4526-4583 of Vol XVII) that (she comments) was written by a police officer who was not called as a witness in the hearing, followed by pp4644-4645; p4646; pp4648-4649, and she goes on to comment that despite all the effort expended in the inquiry the State not only could not formulate any accusation against the arguidos, but it concluded that the indications that made them arguidos could not be confirmed or strengthened.
She goes on to show and state that while many parts of the book are in agreement with the case file, the book goes further by using, in a literary form, privileged information, thereby making it more than a mere repository of the procedural case work.From this, and through the video DVD and interviews, she believes that the Respondents exercised their freedom of expression and, in the case of the second and fourth Respondents, freedom of the press.
She concludes the sub-section by pondering if there is a conflict between these rights (of expression/press) and those of the Applicants, and, if so, which should prevail or at what point may one strike a harmonisation or practical agreement [concordance] between them.
In this sub-section the judge provides an extensive array of references, some in full detail, on human rights legislation and commentary. She begins on the personal rights side citing Articles 1, 13(1), 24(1), 25 and 26 of the Portuguese Constitution, and brings in Article 70(1) and 70(2) of the Portuguese Civil Code. Against this, on the side of freedom of expression, she cites Article 37(1) of the Portuguese Constitution and, moving to higher ground, she cites Article 19 of the Universal Declaration of Human Rights, 10 December 1948, and Article 10 of the European Convention of Human Rights, ratified in Portugal on 13 October 1978.
While again acknowledging that all the principles in these statements are incorporated in Portuguese law, she points out that the freedom of expression is one that carries a responsibility, noting that that principle applies similarly to freedom of the press, on which point she turns briefly to cite and reference other laws and statutes pertaining to the press, to journalists and to television in Portugal. Finding no resolution up to this point, and after acknowledging that in the present case there is a situation that a simple appeal to the values of human dignity will not be able to resolve, the judge takes us to a higher plane still – to consider the words of the great thinkers of law in the abstract. We are treated to several law school treatises from which, eventually, we reach a goal of sorts in Civil Code Article 335 which is based on the principal of proportionality and which essentially says that when rights of the same type collide then the holders of each much give way to the extent necessary without detriment to either party, and when rights that are not of the same type collide then the superior rights must prevail.
We are now at page 34 and, returning to earth and moving on, the judge turns her attention to the first Respondent and his actions: he was the coordinator of the inquiry; he did resign from the police; at the time of his resignation opinions had been formulated by investigators, but she then declares a disinterest, "here" in her dialogue, in what happened in the inquiry and the archival thereof, being more interested in the limitations legally imposed on the freedom of expression on certain groups of persons due to their line of work, particularly members of the police.Weaving her way deftly through many different considerations with we, the readers, being gripped firmly by the ring in our nose and led through two pages of cogitation to the rather abrupt conclusion on page 36 that the principal action [the forthcoming defamation/libel action which gave rise to these injunction hearings] is the appropriate place to get to the bottom of all the matters she raised.
She goes on to acknowledge that it may be argued that the actions of the first Respondent are in defence of his good name and the higher purpose of discovering the truth and the realisation of justice, but also notes that the situation of the first Respondent is identical to all those who exercise similar functions and that public scrutiny of the action of justice is not served by its agents when it might result in the violation of rights of persons affected by the case. For the rest, she concedes, it does not appear from the hearing papers that the first Applicants [the parents] had had in view the good name of the Respondent.She then takes pains to clarify that in the Court's pondering it finds no reason to conclude any compression [reduction] of the rights of the parents, specifically as a result of their quality as 'public figures'.
That is not to say (she continues) that it has not been proved that the initiatives developed on various media stages [theatrical, not procedural] have not provoked perplexity, it means only that there is no appearance that these initiatives had been aimed at a 'brand name' typical of certain professional, artistic and sporting operations.
Moving on again, she evaluates possible differentiation between the book and the video, acknowledging that the latter, given its audiovisual medium, was likely more impressive [impressionable on public opinion] than the book.After restating the caveats in the documentary and the television transmission she finds that the documentary is merely the book in a different form due to the former investigator being the narrator.
This sub-section deals with Applicants' allegations and their desire for the existing injunction to continue. Much of what is written below is a direct translation.A statement from page 15 of the original injunction is repeated: "Despite the editions of the book in Portugal and in France, despite all the articles and interviews published in the press and despite the DVD already sold/on sale and the data available for consultation on the Internet, its disclosure is not total [complete; at an end] and can, naturally, be augmented, particularly through the means referred to by the Applicants."
The judge continues: The augmentation of [increase in] its disclosure involves the future enlargement of [increase in] damage suffered and will constitute, in occurring, the injury that one intends [wants] to avoid.One cannot skirt the question, given all that already circulates freely on the Internet, be it the documentary, be it the book translated into English, that there will not be periculum in mora [a reasonable and real danger of legal damage/injury].
On the other hand, even if merely indicative, one is not to ignore that each new disclosure of the theory of the first Respondent, under his personal seal, with the natural credibility that attaches to a statement from a PJ Inspector who coordinated the investigation, aggravates [worsens] the offence against the good name and reputation of the first Applicants.It was alleged, specifically in the opposition from TVI, that the publication and disclosure of the first Respondent's theory does not put in crisis [endanger], nor prejudices the discovery of the whereabouts of the third Applicant, because, each time one speaks on the subject, giving another version of the events, the public opinion [public interest] remembers the case and is reawakened.
The definitive resolution of the mystery that continues to hang over the fate of Madeleine McCann would come up against the natural human sentiment of curiosity, finally giving the lie to [rejecting] one of the versions that has so agitated the public in general. Still according to this proposition, the activity of the Respondents would have increased exponentially the chances of progress in the investigation.
The judge, without prejudging the outcome of this point in the principal action, says that the above conclusion does not appear reasonable because the rules of common experience appear to indicate that, the Respondent having been the Coordinating Inspector of the Inquiry, his opinion or theory, even outside the official case documents, carries a high degree of influence and suggestion. A reasonable man, faced with the theory given by a criminal investigation coordinator that Madeleine is dead and her body was hidden by her parents, will feel unmotivated and pay little attention, with regard to new clues, leads and information for example, to the hypothesis of abduction that was not discarded in the archival instruction statement.Besides, the declarations of various participants, including Dr. Amaral, as to the incompleteness of the investigations and to the utility of their reopening, point to the volatility [transience; changing nature?] of some factual data.
This is not something strange to [distant from] the existence of threat of future damage/injury or of aggravation of that already observed to the personal rights of the Applicants. There is observed, therefore, the requirement of periculum in mora.
This penultimate sub-section revisits key points in the contracts between Respondents. It begins with another recapitulation of the existing injunction, repeats the opposing assertion that Dr. Amaral should not be included in item c) because his rights had been ceded, examines the wording of relevant parts of the contracts and the import thereof on the clauses of the injunction, and considers the effect of any redaction [editing] of the clauses in the light of that examination.The judge concludes that some wording changes are necessary to avoid ambiguity in the terms of the injunction, and to correct any unjust repression of the right to freedom of expression.
This final sub-section addresses the two 'bad faith' condemnations requested by the Applicants.
Both requests were rejected on the basis that there had been no attempt by either Respondent to alter the truth or to confound the Court, and there was no procedural conduct on the part of the Respondents that met the minimum requirements of any of the conditions in CPC 456(2).[End of section III – O Direito.]
Section IV – The Decision
This section is very short.It maintains the injunction and, without prejudice, it reaffirms the wording changes determined in sub-section F.[End of section IV – O Decisao.]
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There are several minor observations that I am sure will surface to be discussed in forums, but I have two personal observations on one point that I consider to be quite important:
1 – With one possible exception, I believe the Lady judge maintained her focus on the matter before her and her independence of mind. The exception, probably due to my spending extensive, some might say excessive, periods of time around the world on various Internet forums, as well as in social debates, pertains to her statement in sub-section E) that "… the rules of common experience appear to indicate that …"(assuming no translation error on my part.)
There is no doubt in my mind that the good lady, by dint of her professional position and the path she would likely have had to take to attain the same, will have more than a passing familiarity with the frailty of the human condition at all levels of Portuguese society. I have to wonder, however, if that, and that alone, constituted her appreciation of "the rules of common experience" given that we have seen this expression previously at page 4647 of the case file in the final conclusion penned by the two prosecutors.
2 – In the same sub-section, read together with the comment regarding the Applicants' allegation 35 made in the supplementary hearing document at the end of Section I, if the paragraphs from TVI in sub-section E) were the only attempt to quash allegation 35, or other attempts were weaker still, then that oversight on the part of the Respondent defence teams may be singled out as a likely key reason for their failure to prevail.
As I recall, the first objective in a debate is to demolish an opponent's argument before building one's own. Clearly this was not done with respect to allegation 35 as evidenced by the judge's simple understatement that "… the witness testimony was not sufficiently convincing …" and her dismissal of the TVI submission "because the rules of common experience appear to indicate that...".
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c) the rights of the parents to their image, good name, good reputation and to the preservation of the integrity of their private life, the right to freedom and security, the right to their moral integrity, the right to not be treated in a degrading, cruel or inhuman manner, the right to the fruits [use?], like any citizen, of the guarantees of the penal process.''
One has to remind oneself at regular intervals that Madeleine's case is shelved and not done and dusted.
Were the case to be re-opened, then the parents would be made arguidos once again.
The image, reputation and preservation of their private life, freedom and security is something they should have considered before leaving the children unattended in the first instance and before engaging with the media and Mitchell.
Therefore, one would say that the case is dismissed as there is no case to answer. Any damage is a direct result of their own actions, not because an officer involved in the investigation chose to write a book about it.
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