Portuguese journalist wins landmark case over freedom of expression

A Portuguese journalist condemned to pay €60,000 for an opinion article he wrote in 2006 has finally won what will undoubtedly become a landmark case for freedom of expression.
José Manuel Fernandes - formerly editor of Público (now publisher of news review website Observador) - was found guilty of defamation by the full gamut of Portuguese courts.
But the European Court of Human Rights has now ruled that these courts “exceeded their margin of appreciation” in maintaining Fernandes’ enormous indemnity - one which it pointed out was equivalent to a sum attributed over a death.
The State has thus been ordered to pay Fernandes €9,400 “plus expenses” within a three-month deadline from today.
It hasn’t been explained this way, but the “plus expenses” clause is likely to run to hefty sum, considering Fernandes has been fighting this judicial battle for the best part of a decade.
The article that started Fernandes’ litigation nightmare centred on a critique of the appointment of Noronha do Nascimento to head up the Supreme Tribunal of Justice.
Noronha do Nascimento took exception to being considered the personification of the “dark side of our justice system”, and took out a prosecution for defamation.
As Observador explains, the ECHR is available to any citizen who has exhausted the judicial means at their disposal and who feels their human rights have been violated.
And today the ECHR ruled in Fernandes’ favour, saying there was “no reasonable relationship of proportionality between the restriction of freedom of expression of the complainant and the objective pursued of protecting the good name of Noronha do Nascimento”.
For anyone following ‘freedom of expression’ cases - like that of former Maddie cop Gonçalo Amaral, or of currently jailed activist Maria de Lurdes (click here) - this ruling may well set a valid precedent over “reasonable relationship of proportionality”. The pity is that people have to fight so long to win it.
natasha.donn@algarveresident.com

http://portugalresident.com/portuguese-journalist-wins-landmark-case-over-freedom-of-expression
Posted by portugalpress on January 17, 2017

Free speech is free speech.

No "buts".

We don't like in a free society without free speech.

"I disapprove of what you say, but I will defend to the death your right to say it" - attributed to Voltaire.

BlueBag wrote:Free speech is free speech.

No "buts".

Literally true but reality tells an entirely different story. 

Both sides are at fault - as witnessed during the Leveson inquiry.  The McCanns and so called celebrities want good publicity to be published ad-infinitum but they balk when something negative is reported that might damage or jeopardize their public persona.  They even pay big money for positive coverage.

The press, by example, want free speech but that doesn't give them carte-blanche to follow party agenda, mislead and/or publish downright lies.  It's a losing battle. 

There should, in my opinion, be a global approach and solution to this farcical blame/libel culture that has slowly invaded our lives.  As it stands, it would appear every case is individually assessed and determined by the clout representing the so called victim.  That's not democracy - it's tantamount to big lucrative business!

Goncalo Amaral, for one, should never have been forced into defending his right to speak and if I might say, be ruined in the process.  It is he who should be suing the UK authorities for so badly mis-representing the Portuguese investigation into the disappearance of little Madeleine McCann.

"José Manuel Fernandes - formerly editor of Público (now publisher of news review website Observador) - was found guilty of defamation by the full gamut of Portuguese courts.

But the European Court of Human Rights has now ruled that these courts “exceeded their margin of appreciation” in maintaining Fernandes’ enormous indemnity - one which it pointed out was equivalent to a sum attributed over a death".
------------------------------------------------

"was found guilty of defamation by the full gamut of Portuguese courts."

Mr Amaral, if I recall, has never been found 'guilty' of 'defamation' by 'the full gamut' of Portuguese courts, but was 'determined' to have been found 'guilty' by a single judge, Maria Emilia Melo e Castro, on 'appeal', against a 'ruling' by more 'senior' judges, previously.

ISTBC, of course.
---------------------------------------
Lisbon Appeals Court Ruling 19 October 2010

In that aspect, we stand before the exercise of freedom of opinion, which is a domain in which the author is an expert, as he was a criminal investigator for 26 years.

Let us now analyse the juridical focus of the rights that were invoked by the applicants:

As mentioned above, the Court's decision a quo immediately put aside the dangers of damage to the applicants' physical integrity or their treatment in a degrading, cruel or inhumane way.

The following dangers subsist:

1. damage to the reservation of the applicants' private and family life;
2. damage to their right to image and a good name;
3. damage to their right to the guarantees of the penal process, namely the right to a fair investigation and the right to freedom and safety.

Concerning the applicants' reservation of private life, we verify that they themselves have given numerous interviews and intervened in the media, thus giving them [the media] information that would hardly be publicised by any other means: this includes the documentary that was produced by the British TV station "Channel 4", which had the applicants' cooperation and was widely broadcast in the United Kingdom and later on in Portugal (ref. Nos. 32 to 35 of the aforementioned proven facts); one should pay attention to the fact that the applicants have easy access to the national and international media, having given an interview to North American television talk show "Oprah" hosted by the well-known Oprah Winfrey, which was already broadcast in Portugal, also by SIC, on the 4th of May, 2009, and again on the 12th of May (ref. No. 40 of the same facts).

Concerning this matter, the Civil Code establishes as follows:

Article 80º

(Right to reservation over the intimacy of private life)

1. Everyone must maintain the reservation over someone else's intimacy of private life.
2. The extent of reservation is defined according to the nature of the case and the persons' condition.

Article 81º


(Voluntary limitation of personality rights)


1. All voluntary limitation of the exercise of personality rights is null if it is contrary to the principles of public order.


2. The voluntary limitation, whenever legal, is always revocable, although with the obligation to indemnify any damages that were caused to legitimate expectations of the other party.

We conclude that the applicants voluntarily decided to limit their right to the intimacy of private life, certainly envisaging higher values like the discovery of their daughter Madeleine's whereabouts, but upon voluntarily limiting that right, they opened the doors for other people to give their opinion about the case, in synchrony with what they were saying, but also possibly in contradiction with their directions, yet always within the bounds of a legitimate and constitutionally consecrated right to opinion and freedom of expression of thought.

We do not see that the right of the book's author, the defendant, can be limited by a right to the reservation of intimacy that suffered voluntary limitations by their holders, the applicants.

In the same way, concerning the applicants' right to image and a good name: upon placing the case in the public square and giving it worldwide notoriety, the applicants opened all doors to all opinions, even those that are adversarial to them.

In any case, we understand that the allegation of facts that are profusely contained in the judicial inquiry and that were even published through an initiative of the Republic's Attorney General's Office, can in no way be seen as an offence against the right to image and a good name of the subjects in the process.

In a concise manner:

The book at stake in this process - "Maddie - the Truth of the Lie" - which was written by the defendant Dr. Goncalo Amaral, has the main motivation of defending his personal and professional honour, as the author points out right away in the preface and throughout his text.

The contents of the book does not offend any of the applicants' fundamental rights.

The exercise of its writing and publication is included in the constitutional rights that are secured to everyone by the European Convention on Human Rights and by the Portuguese Republic's Constitution, namely in its articles 37º and 38º.

As we arrive at this point, we conclude that the decision that was made by the Court a quo must be revoked, and the analysis of the other issues that are placed under appeal are not justified, as they are considered prejudiced.

The appeal by defendant Dr. Goncalo Amaral is sustained.

The other appeals are not taken into consideration, as it is understood that their appreciation is prejudiced - article 660º, no 2, of the Civil Process Code.

III - Decision

In harmony with what is written above, under the terms of the cited dispositions, the Judges at this Appeals Court declare the validity of the appeal filed by defendant Dr. Goncalo Amaral, and the sentence of the Court a quo is revoked, its disposition replaced by the following:

The injunction is deemed not valid because it was not proved.

Furthermore we deliberate that we do not acknowledge the rest of the appeals.

Costs to be paid by the appealed parties [the McCann couple and their three children].  

Lisbon and Appeals Court, 14.10.2010

The Appellate Court Judges,

Francisco Bruto da Costa

Catarina Arelo Manso

Antonio Valente -

.