The Complete Mystery of Madeleine McCann™
Welcome to 'The Complete Mystery of Madeleine McCann' forum 🌹

Please log in, or register to view all the forums as some of them are 'members only', then settle in and help us get to the truth about what really happened to Madeleine Beth McCann.

When you register please do NOT use your email address for a username because everyone will be able to see it!

The Law vs.The McCanns Mm11

The Law vs.The McCanns Regist10
The Complete Mystery of Madeleine McCann™
Welcome to 'The Complete Mystery of Madeleine McCann' forum 🌹

Please log in, or register to view all the forums as some of them are 'members only', then settle in and help us get to the truth about what really happened to Madeleine Beth McCann.

When you register please do NOT use your email address for a username because everyone will be able to see it!

The Law vs.The McCanns Mm11

The Law vs.The McCanns Regist10

The Law vs.The McCanns

View previous topic View next topic Go down

The Law vs.The McCanns Empty The Law vs.The McCanns

Post by Verdi 28.04.22 13:45

Lisbon Appeals Court Ruling 19 Oct 2010

The Law vs.The McCanns Trl112

Unspecified Injunction
Process number 6000/09.8TVLSB-A.L 1
Lisbon Appellate Court Decision
Appeal Review

I - Report

At the judicial circuit of Lisbon

Kate Marie Healey McCann,
Gerald Patrick McCann,
Madeleine Beth McCann,
Sean Michael McCann and
Amelie Eve McCann

Have filed an unspecified injunction against:

Goncalo de Sousa Amaral,
Guerra e Paz, Editores, SA
VC - Valentim de Carvalho - Filmes, Audiovisuais, SA and
TVI - Televisao Independente, SA

Alleging that the first two applicants are the Mother and Father of the other applicants, who are all underage, being that it is commonly known that little Madeleine disappeared on the 3rd of May, 2007, and her disappearance prompted an extensive police investigation.

The defendant, Goncalo Amaral, was one of the Judiciary Police (PJ) investigators that was involved in the investigation and later on wrote a book that is titled "Maddie The Truth of the Lie", in which he defends, inter alia

that there is a serious possibility that little Maddie accidentally died in the apartment where she was staying and that her parents did, in some manner, undertake the concealment of her cadaver.

They conclude by requesting:

1. The prohibition of sale and the order to collect, for destruction, all the books and videos that are still left at points of sale or other deposits or warehouses;

2. The prohibition to perform any new editions of the book or the video, or of any other books and/or videos that defend the same already criticised thesis, and that are destined to be sold or made public by any other means, in Portugal;

3. The prohibition to cede the editorial or author rights of the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;

4. The prohibition to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two Applicants;

5. The prohibition to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;

6. The prohibition to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.

The petition was fully refused as it was understood that the perils of damage had already been consummated.

In an appeal, that decision was revoked by a decision of this Appeals Court, and the production of evidence was demanded.

After evidence was produced before the lower court, a new sentence was issued, which sustained the injunction and decided as follows:

a) The prohibition for the defendants to sell the books and videos that were still available at points of sale or at other deposits or warehouses and the obligation for the defendants to collect them and to deliver them to the depositary that is nominated below; b) The prohibition for the defendants to perform any new editions of the book or the video, or of any other books and/or videos that defend the same thesis, and that are destined to be sold or made public by any other means in Portugal;

c) The prohibition for the Defendants to cede the editorial or authorial rights over the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;

d) The prohibition for the Defendants to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two Applicants;

e) The prohibition for the Defendants to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;

f) The prohibition for the Defendants to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.

Furthermore, the Court condemns each one of the Defendant firms to pay a compulsory pecuniary sanction of 1000 Euros for each day that they do not obey the prohibitions or the order to apprehend the books and the videos.

After having been notified of that decision, appeals were filed by:

Goncalo de Sousa Amaral,
Guerra e Paz, Editores, SA
VC - Valentim de Carvalho - Filmes, Audiovisuais, SA and
TVI - Televisao Independente, SA

All of them based on the right of freedom of expression of thought that is constitutionally consecrated and furthermore the fact that the statements and facts that were published in the book are the mere reproduction of solid data that is part of the investigation that was started at due time, and that said statements and facts are even part of the investigation's archiving dispatch that was signed by a Prosecutor of the Portuguese Republic.

A new sentence was issued, which basically upheld the sentence that had been issued before and that granted the request.

Against that sentence, appeals were filed by the four opponents.

[a summary of the arguments that were presented by the four opponents to follow]

II - Legal basis and Reasons
The following facts were proved:

From the injunction request

1 - On the 24th of July, 2008, the first Defendant published in Portugal, under edition of the second Defendant, the book that he is the author of, "Maddie The Truth of the Lie".

2 - In that book, the first Defendant defends the thesis that:

1) The child Madeleine McCann died in the Ocean Club Apartment, in Vila da Luz, on the evening of the 3rd of May, 2007;
2) The simulation of an abduction took place;
3) Kate Healy and Gerald McCann are suspected of involvement in the concealment of their daughter's cadaver,
4) The death may have been the outcome of a tragic accident;
5) There are indications of neglect regarding the guardianship and security of the children.

3 - The aforementioned book attained 4 editions until the end of July, 2008, 9 editions until the end of August, 2008, and 12 editions until the end of September, 2008.

4 - Each edition was comprised of approximately 10.000 copies.

5 -The book is presently sold out at practically all points of sale.

6 - When the book was published, the first Defendant gave interviews to all the media that requested him to do so, namely RTP, and in those interviews he defended the thesis that he presents in the book.

7 - The first Defendant also gave, among others, an interview to "Correio da Manha" newspaper, which was published in their edition of the 24th of July, 2008, where he defended the thesis that he presents in the book.

8 - At the beginning of the month of May, 2009, the same book was published in France, now under the title "Maddie, L'Enquete interdite: Les revelations du commissaire portugais charge de l'enquete".

9 - The first Defendant gave countless interviews to several media in France, including the one that was published by newspaper "Le Parisien" and its corresponding website.

10 - In those interviews, the first Defendant once more mentioned the thesis that he presents in the book.

11 - The book's French edition was and is systematically and profusely published on the internet, at least at: [a list of websites follows - including this blog]

12 - Between the date when the Portuguese edition was published, on 24th June, 2008, and the date of the book's French edition, in May 2009, the fourth Defendant broadcast a television programme which was produced by the third Defendant, that reserved to itself the ownership of the corresponding rights.

13 - The first emission of that television programme took place on the 13th of April, 2009.

14 - The second emission of that television contents took place on the 12th of May, 2009.

15 - That TV programme was broadcast in Portugal at least on those two occasions.

16 - The same TV programme/video is intrinsically based upon the contents of the book "Maddie The Truth of the Lie".

17 - In the video in question, the First Defendant once again sustains his theory that the Third Applicant is no longer alive, that her death occurred within the Ocean Club apartment and that her parents, the First Applicants, concealed the cadaver of their daughter.

18 - At least two million two hundred people viewed the first broadcast of this TV programme.

19 - At the end of April 2009, the DVD corresponding to this programme began to be commercialised, with the title and subtitle of "Maddie : What Lies Beneath the Truth" - A Powerful Documentary based on the best seller "Maddie - The Truth of the Lie" by Goncalo Amaral.

20 - 75.000 copies of this DVD have already been distributed for sale.

21 - The DVD is published, at least, on the web site of the Third Defendant.

22 - The first Applicants are married to each other and are the parents of the third, fourth and fifth Applicants.

23 - During the Criminal Investigation in which the first Applicants were constituted arguidos, the archiving dispatch was issued, referring to them on pages 145-173, dated 21st July 2010.

24 - Madeleine Beth McCann has been missing since the of 3rd May, 2007.

25 - Curricular articles were divulged on the Internet relating to the First Defendant, that spoke of him as a correct, structured, sociably adept man, namely to perform political roles.

26 - The first Defendant is a person much mentioned in the press.

27 - The curricular information previously referred to (point 25) reveals a man who studied engineering, graduated in legal and criminal sciences and who was an officer/inspector of the PJ for 27 [sic] years.

28 - The first Defendant knows the significance and scope of an archiving dispatch in a criminal case.

29 - The first Defendant knows who holds power over an investigation, who can open or re-open it and under which circumstances.

30 - The first Defendant knows what defamation and slander mean.

31 - The first Defendant knows what it means not to be at the service of a criminal investigation.

32 - The first Defendant has professional experience and is an adult.

33 - With the divulgation of his theory about the events of May 3, 2007 in Praia da Luz, the first Defendant, with the help of the three other Defendants, saw himself being promoted and earned money.

34 - The first Defendant had pretensions to intervene in local political life.

35 - The Defendants aim to divulge the book and DVD around the world, gaining financially, commercially and socially, which deepens the suffering of the first two Applicants and makes the searches for the third Applicant difficult.

From the oppositions

1 - The Defendant was the Coordinating Inspector of the "Maddie Case" Investigations from the 3rd of May, acting in this quality, within the scope of Inquest process No 201/07.0GALGS of the Lagos Public Ministry Services, until the date when he was withdrawn from the case, on the 2nd of October, 2007.

2 - He retired from service on the 1st of July, 2008.

3 - On the date that he was withdrawn from the case, it was of the Defendant's knowledge that some of the investigators had formulated the opinion that Madeleine McCann had died in the apartment, that a simulation of abduction occurred and that her parents were suspected of concealing a cadaver.

4 - The investigation activities that the first Defendant reports in the book and in the documentary are contained in the investigation process.

5 - The investigation process was made available in electronic format, namely to the national and international media, who proceeded to divulge it, thereby enabling knowledge, comments and public and universal discussion of it.

6 - Any person can have access to these facts and to the documents of the investigation process in which they were verified, on the internet, only a "click" away.

7 - The witness friends of the first Applicants did not make themselves available to appear in Portugal for a diligence of reconstruction of facts, as was determined by the dispatch from the Prosecutor's Office, on pages 4636 to 4638 of Volume XII of the Investigation.

8 - Under the terms of the editorial contract, relating to the book "Maddie - The Truth of the Lie", signed with the first Defendant, the author's rights of ownership were temporarily ceded to the second Defendant, only with regards to the editing of the book.

9 - The book was published, through other editors, in some countries (apart from France) as pointed out under item 8 of the provisional injunction, as follows:

In Spain, in September 2008, with the title "Maddie - La Verdad de la Mentira", with eventual commercialisation in Castilian language into Latin American countries.

In Denmark, in November 2008, with the title "Maddie - Sandheden on Lognem", with eventual commercialisation in other Nordic countries.

In Italy, in December 2008, with the title "Maddie - La Verita della Menzogna", with commercialisation in the Italian language throughout the world.

In Holland, in April 2009, with the title "Maddie - De Waarheide Achter de Leugen", with commercialisation in the Dutch language throughout the world.

In Germany, in June 2009, with the title "Maddie - Die Wahrheit tiber die Luge", with commercialisation in Austria and Switzerland.

10 - There is an English version circulating on the internet, on the web site, where a Portuguese version can also be found.

11 - On their web site (www.etc), the first Applicants cite the theory of the first Defendant.

12 - The Daily newspaper "Correio da Manha", in its edition of 3rd October 2007, published a supplement with the title "Maddie, The Diary of a Mystery".

13 - By means of the Fund that was created by the first Applicants, diligences that are considered to be opportune are being made in order to obtain leads about what happened to and to discover the whereabouts of the third Applicant.
14 - During the first trimester of 2008, "VC Filmes" learned that the first Defendant was writing a book, the publication of which would take place during the first semester of that same year, with an objective and factual description and the revelation of elements, at the time un-published, of the investigation into the disappearance of Madeleine McCann which he had led.

15 - "VC Filmes" expressed their interest to the first Defendant for an audiovisual adaptation (documentary and fiction) of said book.

16 - And with him [Dr. Amaral], an agreement was made for ceding the exclusive rights in their [VC Filmes'] favour for the adaptation of a book into a documentary or fiction that could have the format of a book for cinema or a telefilm for television and which should be explored on all platforms and on all kinds of media.

17 - The author of the book agreed to participate as narrator of the documentary.

18 - And he ceded to "VC Filmes" all the ownership of author's rights and connected rights that belonged to him as author and narrator, namely for effects of the exploration by "VC Filmes" of the documentary by all methods and by all means.

19 - "VC Filmes" ceded to the fourth Defendant the rights of television broadcast or transmission in Portugal of the audio visual documentary entitled "Maddie – The Truth of the Lie", produced by them.

20 - And, as happens with all other cinematographic and audio visual works produced by "VC Filmes", the latter ceded to its distributor "Valentim de Carvalho Multimedia, S.A.", namely the rights of edition and distribution of the documentary for publication in video format, thereby making themselves their representative as regards the exploration or commercialisation of the rights of television broadcast or transmission of this documentary in foreign countries.

21 - "Valentim de Carvalho Multimedia" in representation of "VC Filmes", ceded the rights of television broadcast or transmission of the same documentary to television stations in Spain, Andorra, France, (Flemish) Belgium, Denmark and Poland, on dates previous to the notification to "VC Filmes" of the decision presented in this injunction.

22 – Until that same date, the documentary in question was reproduced only once in order to be edited, published and sold in Portugal, in video format, in this case a DVD.

23 - Neither "Valentim de Carvalho Multimedia" nor "VC Filmes" had ceded any rights of edition or author's rights concerning the content of the same documentary (or the video that reproduces it) for publication in any other part of the world.

24 - The reproduction and editing were authorised by "Valentim de Carvalho Multimedia" to the company "Presslivre, Imprensa Livre, S.A.", owner of the newspaper "Correio da Manha" by means of a contract established between both parties, under which terms, the DVDs, their covers and packaging would be produced on account, by order and under the responsibility of "Presslivre", to be distributed and commercialised jointly with the newspaper "Correo da Manha".

25 - And the entire process of registration and classification of the video edition (DVD) of the documentary at IGAC would be, as it was, developed by "Valentim de Carvalho Multimedia", the costs of which process would be covered by "Presslivre", as indeed was done.

26 - 75.000 DVD units were produced for said edition.

27 - The respective distribution for sale took place together with a distribution for sale of the edition of the newspaper "Correio da Manha" on the 24th of April, 2009.

28 - Only a small number of the DVDs distributed was effectively sold, 63.369 units having been returned to "Presslivre".

29 - The investigation files were made available in electronic format, namely to the national and foreign press, which disseminated it, enabling it to become known and to be publicly and universally commented upon and discussed.

30 - Anyone has access to those facts and to the documents from the investigation process in which they were verified, on the internet, at the distance of a "click".

31 - The documentary was published and sub-titled in English, by third parties who published it on the internet, without the knowledge and against the will of "VC Filmes".

32 - The first two Applicants, in collaboration with British television station "Channel 4" also produced a documentary about the disappearance of the third Applicant in Praia da Luz in May 2007, which expressed their version of the events.

33 - This audio visual piece, titled "Still Missing Madeleine" and which corresponds to a documentary, with a duration of 60 minutes, was subject to a preliminary licensing agreement by "Mentorn International" to "TVI", for the Portuguese territory, with an exclusivity duration for the period between 7th May 2009 and 6th May 2010.

34 - This agreement even began to be negotiated before the first screening by the Defendant [TVI] of the documentary based upon the book of the first Defendant, and was duly reduced to a written text, in the form of a "Deal Memo" (business deal), which was signed by both parties on 15th April 2009.

35 - "TVI" programmed the screening of this documentary with the version of the Applicants, in such a manner as to complement the showing of the documentary based upon the book by the first Defendant, seeking by acting in this way, to clarify the public in an unbiased way, showing various versions and possible explanations for the same facts.

36 - On 23rd April 2009, "TVI" was informed by telephone that "Mentorn" was not going to comply with the preliminary licensing agreement in question, which was confirmed in writing, on 5th May 2009.

37 - The reason why "Mentorn" was not going to comply with the agreement in question was that the McCann family had given instructions that they did not want the programme to be licensed to "TVI".

38 - The documentary that reports the version of facts defended by the Applicants was screened on 12th May 2009 by "SIC" channel, with the title "Maddie – two years of anguish", having been previously been broadcast in the UK.

39 - In that documentary, an explanation is given, with the help of private detectives, of the version of facts defended by the Applicants and a re-construction of the night of the disappearance of Madeleine McCann is made.

40 - The first Applicants have easy access to national and international press, having given an interview to the American television programme "Oprah", presented by the well known Oprah Winfrey and which had already been shown in Portugal, also by SIC, on 4th May 2009 and again on 12th May.

41 - That programme was transmitted throughout the entire world by means of available satellite signals and cable networks.

42 - In this interview the first Applicants once again explained their theory about the fateful events of the night of 3rd May 2007 and once again launched an appeal for her search, revealing new facts about the private investigations that they hired.

43 - In the documentary presented by "SIC", the first Applicants revealed the existence of at least one more witness statement, re-constructions and photo fits that reinforce the abduction theory.
After reading the proved facts, we do now have to place them into a juridical context.

Concerning the suitability or unsuitability of the appeals, it is considered that the matter is solved in the dispatch that was written at the lower court, on pages 1.359/1.367, and the appeals are all suitable.

As was written, and well, in the decision that is under analysis, the injunction is a legal instrument that is destined to effectively protect subjective rights or other jurisdictionally relevant interests. ---

Its practical importance does not result from the capacity to solve conflicts of interest in an autonomous and definitive way, but rather from its usefulness in the anticipation of certain effects of judicial decisions, in the prevention of serious or hardly repairable violation of rights, in the prevention of financial damages or in the preservation of status quo, until the final decision on the case is issued.

It represents an anticipation or a guarantee for efficacy concerning the outcome of the main case and it is based on a summary analysis (summaria cognitio) of the factual situation that allows to state the right as being likely (fumus boni iuris) and the justified fear that said right may be seriously damaged or rendered useless, if a certain injunction is not decreed (periculum in mora).

It is, after all, an antechamber of the main process, and it allows for an interim or provisory decision to be issued, with the purpose of diminishing the erosive effects that derive from the delay in a definitive solution, or to render fruitful the decision that may be favourable to the Applicant.

Article number 381º, no 1 of the Civil Process Code stipulates that whenever someone shows a well-based fear that someone else may cause a serious and hardly repairable damage to his or her right, that person may request the conservatory or anticipatory injunction that is specifically adequate to ensure the effectiveness of the right that is under threat.

On the other hand, article 387º, no 1 of the same diploma establishes that the injunction is decreed whenever there is a serious possibility of the existence of the right, and the fear of its lesion is sufficiently well-based.

Therefore, the injunction is a means, and not an end. It does not seek to directly and immediately carry out the substantial right, but rather to take measures that ensure the efficacy of a subsequent providence, which is actually destined to act on the material right.

Therefore, the injunction is of a provisory nature and always depends on a cause (preliminarily or incidentally) - article 383º, no 1 of the Civil Process Code.

Thus the success of the injunction depends on two requisites:

a) the verification of the appearance of a right;

b) the demonstration of the danger of said apparent right not being satisfied. Concerning the first requisite, the court is asked to appreciate or to judge on a mere possibility or verisimilitude (bonus fumus juris). As far as the second requisite is concerned, a judgement of stronger and more convincing probability is at stake.
The fear of serious and hardly repairable damage that is mentioned in article 387, number I of the Civil Process Code means "present and founded fear".

The fear is founded when it is of such nature that it justifies the requested injunction; and it only justifies it when circumstances present themselves in a way that convinces that damage to said right is imminent.

In the a quo Court's decision the dangers of lesion to the applicants' physical integrity or their treatment in a degrading, cruel or inhumane manner are promptly set aside.

The dangers of lesion to the applicants' reservation of private and family life subsist, as well as the lesion to their right to image and a good name and the right to usufruct from the penal process' guarantees, namely the right to a fair investigation and the right to freedom and to safety.

In an opposite position are the rights of the defendants – the right to freedom of expression of thought and the freedom of press.

Honour, the right to a good name are personality rights that are densely defended and protected by several legislative orders:

Right away, by the constitutional order (confront article 26 of the Portuguese Republic's Constitution), and also in the international order.

Ordinary law also protects the same rights, as can be understood by reading articles 70, 72 and 484 of the Civil Code.

As it has to be, jurisprudence strongly reflects that general tutelage and the defence of citizens' good name and image.

By all, one should read the very recent Ruling from the Supreme Court of Justice dated 20.01.2010 (Presiding Judge: Fonseca Ramos), that can be reached on the internet, on the Court's database that is lodged under the address

I) - One of the limits to the freedom of information, which is therefore not an absolute right, is the safeguard of the right to a good name. Journalists, [and] the media, are bound to ethical, deontological duties of rigour and objectivity.

II) – The media have the right, the social duty, to disseminate news and to emit critical or non-critical opinions, and it is important that they do so while respecting the truth and the intangible rights of others, like personality rights.

III) – The right to honour in a wider sense, and the right to freedom of press and of opinion are traditional areas of conflict.

IV) ...

V) – Criticism is limited by the targeted person(s)' right, but it does not lose legitimacy if it is slashing, sharp, as long as not insulting, because every so often that is the writer's style.

VI) ... VII) ... VIII) ...

IX) – To criticise implies to censor, censorship that takes place in the media only stops being legitimate as a manifestation of individual freedom when it expresses objective antijuricity,

violating rights that are extremely personal and which affect, in a more or less lasting way according to men's memory, goods that have to be preserved like the ones that are at stake here, to a good name and to social prestige.

The right to inform is nowadays unanimously accepted as a fundamental demand of democratic societies of pluralist expression, it is consecrated by Article 37º of the Portuguese Republic's Constitution

The rights of citizenship, which are the basis of social life, constitute the core of the very personality (physical and moral) of the human being; thus the right to life, to physical and moral integrity, to a good name, to image, to freedom, to the protection of intimacy are consecrated constitutionally (articles 24º, 25º, 26º) and in civil law (articles 70º and 484º of the Civil Code).

Due to the fact that all of these rights are constitutionally protected, in principle none of them raises above the others, and - in its practical exercise - each one of them should cede as strictly necessary and in a proportional way, in order to accommodate the adequate practice of the rest of them.

Necessity, proportionality and adequacy are the fundamental principles for the practical conjugation of the concrete exercise of said rights; therefore, the rules that are to be respected must be set case by case, thus allowing to decide which conflicting rights must be compressed, what limits have to be observed and what dominant rights must be protected.

And it is through a cautious pondering of the rights at hand that we will be able to extract some conclusions concerning this specific case.

The book that was written by the first defendant, Dr. Goncalo Amaral, presents a thesis that was at one time defended by several participants in the police investigation: that little Madeleine died accidentally and that her parents, here the first applicants, were suspected of concealing the cadaver.

This defendant was the Coordinating Inspector of the investigation into the case of the disappearance, thus being the most qualified police officer who intervened in the investigation until the time when, through a decision from the Judiciary Police's (PJ) directory, he was removed from that function.

In that role, the defendant was deeply involved in the entire investigation and had the opportunity to formulate all of the possible conclusions about the case, while it was under investigation.

Approximately 5 months later, Dr. Goncalo Amaral was removed from the investigation through a decision of the PJ's directory.

As he clarifies several times throughout the book, the author felt the need to write it right away in order to, as he says, "recover my good name, which was publicly dragged through the mud while the institution that I served for 26 years, the Portuguese Judiciary Police, did not allow me to defend myself, nor defended me institutionally. I asked for permission to speak out in that sense, a request that remains unanswered to this day. I fully respected the PJ's rules, and remained in silence. Nevertheless, said silence was tearing my dignity apart.

Later on, I was removed from the investigation. I then decided that it was time for me to defend myself in a public way. Therefore, I immediately requested my retirement, so I could regain the plenitude of my freedom of expression."

This is a first point - and one that is not small - that should be registered: the author feels he is the victim of injustice and wants to re-establish the truth, at least his truth or his vision of truth, even more so as he felt that his honour was being diminished and the police force that he owed obedience to did not allow him to reply, as a police officer, to those attacks against his professional pride and his honour as a qualified criminal investigation police officer.

In the book that is at stake here - "Maddie - the Truth of the Lie" - the author presents a vast multiplicity of facts and then offers his interpretation of said facts.

Those facts are all part of the investigation and are exhaustively considered and weighed in the archiving dispatch of the process that is on the DVD which has been appended to this court case (page 441).

In that description, there are main facts and others that are secondary, but which the author attributes value to, based on his experience as a police investigator, an activity that he has performed for 26 years.

The author describes, in detail, several facts and circumstances that were not coherent in between each other, from the outset of the investigation, thus prompting contradictory conclusions.

In the archiving dispatch that is signed by two Public Ministry Magistrates, it is written that "From the analysis of the set of depositions that were made it became evident that important details existed which were not fully understood and integrated, which needed to be tested and verified on the location of events itself, thus rendering it possible to establish the apparent failures to meet and the lack of synchronisation, even divergences, in a diligence that is suited for that effect, which was the reconstitution, which was not possible to perform, despite the commitment that was displayed by the Public Ministry and by the PJ, to attain that purpose ..."

In that very same dispatch, the result of the tests that were performed by the sniffer dogs "Eddie" (a dog that was specially trained to signal cadaver odour) and "Keela" (specially trained to detect the presence of human blood) are mentioned.

"Eddie" marked (signalled) cadaver odour:

in the McCann couple's bedroom in apartment 5-A (from where little Madeleine disappeared) in the area next to the wardrobe;

in an area next to the living room window that has direct access to the street, behind a sofa;

and in an area of the same apartment's garden.

The dog "Eddie" again marked the signal of cadaver:

at the "Vista do Mar" villa, which was rented by the McCann couple after Madeleine's disappearance, in the area of a wardrobe that contained a soft toy that had belonged to the little girl;

on clothing that belonged to the applicant Kate Healy, Madeleine's mother;

on the outside of the Renault Scenic vehicle with the license plate number 59-DA-27, that was rented by the McCann couple after the disappearance, next to the driver's door;

and on that vehicle's key/card.

The dog "Keela" detected residues of human blood:

in the same living room of apartment 5-A, which had already been signalled by "Eddie";

after the floor tiles that had been signalled during the first inspection had been removed, she again signalled the spot where the floor tiles had been;

on the lower part of the window curtain that had already been signalled by "Eddie" before;

on the inside of the boot of the Renault Scenic vehicle that had already been signalled by "Eddie";

and in the door storage compartment on the vehicle's driver's side, which contained the car key/card;

The dogs' indications cannot be used as evidence in court, but in multiple cases they provided precious help in terms of collection of evidence for the Scotland Yard and the FBI, with positive results.

These indications were later not corroborated by the British forensics lab that was chosen by the investigation, but they were enough to constitute the applicants, Madeleine's parents, as arguidos in the criminal investigation that was performed over her disappearance.

In possession of that new data, and crossing it with the data that had been collected before, the Portuguese authorities - the Public Ministry and the Judiciary Police - tried to perform a reconstitution of the facts, they did and tried everything, but due to the lack of availability of the McCann couple and their friends, who did not show up, said diligence could not be performed and those facts still remain to be clarified.

Concerning that matter, it is written in the final dispatch that "(...) despite the fact that the national authorities took all measures to render their travelling to Portugal possible, due to motives that are unknown, after the many doubts that they raised concerning the need and the opportunity of their travelling were clarified several times, they chose not to show up, which rendered the diligence impossible to perform.

We believe that the main damaged party were the McCann arguidos, who missed the possibility to prove what they have protested since they were made arguidos: their innocence towards the fateful event; the investigation was also hindered, because said facts remain unclear (...)".

In any case, the fact is that the indications that were mentioned above were sufficient to make the McCann couple arguidos.

The subsequent collection and production of evidence, namely the forensics evidence that was collected and treated in laboratory, weakened that conviction and thus the couple stopped being arguidos. What is certain is that since the start of the investigation there were incongruent and even contradictory situations concerning the witness statements; the telephone records of calls

that were made and received on mobile phones that belonged to the couple and to the group of friends that were on holidays with them; the movements of people right after the disappearance of the little girl was noticed, concerning the state in which the bedroom from where the child disappeared from was found (closed window? open window? partially open window?) etc., and the mystery would only become even thicker due to the clues that were left by the already mentioned sniffer dogs.

All of this is reported in detailed manner in the book that is at stake here, reproducing the contents of some of the case files, which also had an effect on the above mentioned final dispatch that was signed by two Public Ministry Magistrates.

In the book, we do not verify any reference to any facts that are not in that dispatch.

Where the author differs from the Prosecutors who have written the dispatch, is in the logical, police-work-related and investigative interpretation that he does of those facts.

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.

Finally, concerning the damage to the right to usufruct from the penal process' guarantees, namely the right to a fair investigation and the right to freedom and safety, we still cannot understand how it is possible for said rights to be offended by the contents of a book that describes facts from the investigation, although it parts from the interpretation that the Public Ministry's Magistrates made of those facts, yet offering based, solidly built and logical interpretations.

We thus reach a point where it seems to be important to stress the following: the indicative facts that led to the applicants' constitution as arguidos within the inquiry were later on not valued by the Public Ministry's Magistrates in order to lead to a criminal accusation, but those very same facts, seen through another prism and with another base, may lead to a different conclusion from that which was attained by those same Magistrates - those are indications that were deemed to be insufficient in terms of evidence in a criminal investigation, but they can be appreciated in a different way, in an interpretation that is legitimate to be published as a literary work, as long as said interpretation does not offend any fundamental rights of anyone involved - and we have written above already why we understand that said interpretation does not offend the applicants' rights.

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 -


This is my summary of the decision document handed down by the Lisbon Civil Court on 18 February 2010, a copy of which was made available on the Internet by Duarte Levy.
It is not a literal, word-for-word translation of the document, merely my translation / interpretation of it. I apologise in advance to the judge and to the Court for any mistranslation, misinterpretation or misunderstanding of the content on my part. As always I have attempted, within my limited understanding of Portuguese, to be faithful to what was written in that language.

Grammatical and spelling errors in the English, my native tongue, are solely my own.

This summary is produced without compensation of any kind. It is not for sale nor may it be used by any other person in any manner for purposes of sale. It may be distributed freely, and only for free, with or without acknowledgement to my authorship.
Albert Moisiu
March 2010

The main decision document:
The supplementary hearing document:

* * *
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.

Section I
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
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'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

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 Goncalo 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 Goncalo 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 'justica' 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 secret of life is honesty and fair dealing. If you can fake that, you've got it made" - Groucho Marx
ex moderator
ex moderator

Posts : 34677
Activity : 41927
Likes received : 5932
Join date : 2015-02-02
Location : Flossery

Back to top Go down

The Law vs.The McCanns Empty Re: The Law vs.The McCanns

Post by Verdi 28.04.22 13:48

Applicants' rebuttal
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

– 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]

Court's assessment
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 it's 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 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

– 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 edicao 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.]

Section II
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.

Applicants' facts
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

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

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.

Respondents' facts
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

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

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

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

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

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

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

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]

Section III
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).
Sub-section A
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
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.

Sub-section C
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

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.

Sub-section D
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/Lawsuit 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 it's 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.

Sub-section E
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, it's 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] it's 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.

Sub-section F
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.

Sub-section G
This final sub-section addresses the two 'bad faith' condemnations requested by the

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.]

The secret of life is honesty and fair dealing. If you can fake that, you've got it made" - Groucho Marx
ex moderator
ex moderator

Posts : 34677
Activity : 41927
Likes received : 5932
Join date : 2015-02-02
Location : Flossery

Back to top Go down

The Law vs.The McCanns Empty Re: The Law vs.The McCanns

Post by Verdi 28.04.22 13:54

There is a lot more to read here:

Including an analysis of the court documents .... interesting stuff.

The secret of life is honesty and fair dealing. If you can fake that, you've got it made" - Groucho Marx
ex moderator
ex moderator

Posts : 34677
Activity : 41927
Likes received : 5932
Join date : 2015-02-02
Location : Flossery

Back to top Go down

The Law vs.The McCanns Empty Re: The Law vs.The McCanns

Post by Verdi 29.04.22 3:13

'Fake News' Inquiry House off Commons CMS Committee: By Anne Guedes

By Anne Guedes

A submission*

March 2, 2017

Truth of Facts or Defeat of Truth?

As a regular reader of British newspapers and some media blogs, I came upon the launch of the inquiry into the phenomenon of "fake news" on January 30, 2017. The Committee invited written submissions addressing various points that can be found here:

I have a documented knowledge of a "fake news" case which I find an interesting food for thought. Rather than "fake news", I actually should speak of "factually inaccurate news", with consequences not only on the protagonists and on public opinion, but also on the relations between two countries, the ambassador of one having been asked to keep (his) stupid, sardine-munching mouth shut by a tabloid of the other.

I reckon that, in the first place, the Committee rightly questions the meaning of "fake news". It is a very polysemic, perhaps too polysemic, expression.
What remains from reality when real is denied?
What is left from facts when they are refuted as soon as they contradict one's preferences ?

Since the election of Donald Trump, the spreading of false information issue seems to reveal a real crisis of confidence in the media and political system, as explained recently by information science researcher Olivier Ertzscheid.

Everywhere, minds are agitated to try and find answers. Eli Pariser, who has imagined the concept of filter bubbles, so much questioned in recent weeks, has opened a Google Doc to collect solutions.
The document now has over 100 pages and Nicky Woolf, for the Guardian, has attempted to synthesize it.

What did the president of the US imply when he claimed that any negative polls (about him) are fake news?
Simply this: what I dislike doesn't exist and if the real doesn't suit me, it better goes somewhere else, as well as the journalists who spread it.
In post-truth world, words no long matter and nuances disappear. "Fake" here doesn't designate what is false but what is irritating.

It reminds us of Humpty Dumpty claiming to Alice, met Through the Looking Glass, that when he used a word, it meant just what he chose it to mean – neither more nor less... the question being which is to be master, that's all.

To say the least the outcome is a considerable impoverishment for communication..

However, criticizing the media did not appear with DT. It is a healthy and necessary practice because journalists make mistakes. Claiming themselves as counter-power, they hardly can refuse contradiction.

Perhaps the media is too standardized and does not present enough different theses. Perhaps the media is too much moderate when people want things that are excessive, violent, even false, but meeting everybody's presuppositions. However when the time is immoderate, must we lose temperance?

Then there are the conspiracy theories that have worryingly more and more adepts and are tamper-proof since they reverse the burden of evidence, while they present themselves as an alternative to one-track thinking, as dissidents, escaping the diktat of truth. It is the story of Bertrand Russell's space teapot in orbit around Mars: I put forward a completely wacky thesis, prove that I'm wrong! I affirm its existence and defy to prove the contrary. Consequently the slightest thesis is justified through the inability to demonstrate that there is no space teapot between the earth and Mars.

How can people filled with such beliefs be brought back to reason?

Here is my contribution to the inquiry of the Committee, a particular case that illustrates to what extent the concept of "fake news" is a complex one and has to be examined carefully.

1) The facts

― On July 21 2008, the prosecutors of the Portuguese Republic stated in a communiqué their decision not to proceed : With the filing order dated today (21.07.2008) issued by the two prosecutors responsible for the case, the investigation on the disappearance of the minor Madeleine McCann was closed, as no evidence of any crime committed by any party could be found.

― The letter to the Attorney General, that set out the grounds for putting an end to the proceedings, without prejudice to reopening if a new and relevant element arose, is part of the Policia Judiciaria Files that the Public Ministry later made available to journalists via DVD.
(original document and translation in English)

― This document states that the evidence gathered was insufficient to determine
1) what kind of crime the missing child was victim of (whether killed in a neglectful homicide or an intended homicide, whether the victim of a targeted or an opportunistic abduction) and
2) whether the "arguidos" (formal suspects) parents were or not involved in their daughter's disappearance (that status implies that supported suspicion exists).

― This same argument of insufficient evidence was used, on July 7, 2008, by James Lewis Q.C., representing the Leicestershire Constabulary Chief Constable, echoing the written statement of the Assistant Chief Constable Chris Eyre, who worked closely with the Policia Judiciaria, to deny the MC lawyer, Tim Scott QC, access to the documents held by the LC regarding the case : While one or both of them [the McCanns] may be innocent, there is no clear evidence that eliminates them from involvement in Madeleine's disappearance.

― In December 2009, this position was reflected by the British government's Foreign & Commonwealth Office, when responding to a Freedom of Information request about the missing child, Ben Needham. They wrote : You will also be aware of the Madeleine McCann case. Both this and the Needham case are categorised as missing person, rather than child abduction cases, as there is no evidence in either case to support whether the children were or were not abducted.

― Furthermore, the filing order states that the prosecutors requested a reconstitution of the events because of contradictions in the arguidos and witnesses' statements and lack of physical confirmation. Carrying out a reconstitution would eventually dismiss once and for all any doubts that may subsist concerning the innocence of the missing [child's] parents.

― Given the refusal of their travel companions to take part in a reconstitution, stated the prosecutors, the main damage was caused to the McCanns, who lost the possibility to prove what they have protested since they were constituted arguidos: their innocence towards the fateful event. Last but not least the investigation was also disturbed, because said facts remain unclear. (in the framework of the criminal investigation, not in a court of law).

― The filing order lifted the arguido status of the MC, as there was no indication of the practice of any crime.

― It is common knowledge that prosecutors do not have the capacity to demonstrate either innocence or guilt, only evidence can.

It is also common knowledge that prosecutors do not issue rulings, judges do.

2) The Media vs the Facts

― A international press release was organized in the UK by the McCanns' PR, Clarence Mitchell, on the same July 21, 2008.

― the media was informed that the prosecutors issued a filing order clearing the McCanns. That was wrong.

― What the order actually did was lifting the arguido status, a mechanical consequence of the filing.

― Although the filing order, in Portuguese, had not yet been made available, here are the UK media headers, based only on the press release:

.Madeleine McCann's parents officially cleared as police shelve investigation - 21-07-08
. McCanns Cleared Over Madeleine Disappearance - Daily Express 21-07-08
. McCanns May Sue Over Suspect Status - Daily Express 21-07-08
. McCanns Cleared Over Madeleine's Disappearance - Daily Star 21-07-08
. McCanns and Murat formally cleared in case of missing Madeleine - 21-07-08
. Kate and Gerry McCann officially cleared of 'arguido' status - Telegraph 21-07-08
. Kate and Gerry McCann cleared over Madeleine disappearance - Times Online 21-07-08
. Madeleine's Parents Not Suspects - CBBC (Children's BBC) 21-07-08
. McCanns Expected To Be Cleared - Sky 21-07-08
. McCanns cleared as Maddie case is closed - Metro 21-07-08
. Breaking news: Kate and Gerry McCann cleared - Leicester Mercury 21-07-08
. McCanns due to be cleared by Maddie inquiry - Yorkshire Post 21-07-08
. McCanns Set To Be Cleared By Portuguese Authorities - The Scotsman 21-07-08
. MCs no longer suspects as Portuguese police drop Madeleine probe - Daily Record 21-07-08
. McCanns to be cleared over Maddie - Evening Times (Scotland) 21-07-08
. Portugal clears Madeleine's parents - Reuters 21-07-08

No correction was made by the media when the translation in English was published and available on line.
Is it a case of fake news or of deliberate ignorance or of wishful thinking?
Whose accountability was that?

3) Some Consequences of the biased news

― Those who read the filing order couldn't but react to the MSM headers, with no result.

― Fights started soon in online forums between those who claimed innocence and those who pointed an accusing finger at the McCanns whose neglect allowed abduction to occur, two attitudes lacking pertinence but harming.

― On March 10, 2009, Dr Gerald McCann, his Carter Ruck lawyer Adam Tudor and his PR Clarence Mitchell gave evidence at the Culture, Media and Sport Committee on Press Standards, Privacy and Libel.
Instead of calling "disappearance" what happened to Madeleine MC, in conformity with the prosecutors who claimed that the crime had not been determined, they spoke of "abduction" as fact. Nobody protested, as if nobody had ever read the filing order of the prosecutors, nobody recalled that the jurisdiction in this case belongs to Portugal.

― Days after the filing order, the head of the investigation for the five first months, who had just retired, published a book (A Verdade da Mentira).

― In that book Gonçalo Amaral took over his investigative team's conclusions that led the prosecutors to make the McCanns "arguidos" (suspects of concealment of cadaver after accidental death in the flat).

― The book was by no means compatible with the erroneous news that the McCanns had been cleared, forcing the public to choose their party, instead of serenely reflect on the situation.

4) Fake News and Justice

― On June 16, 2009 the McCann nuclear family (father, mother and their three children among whom Madeleine) sued the ex-superintendent Gonçalo Amaral (et al) in order to

1) obtain a ban on his book
2) obtain a compensation of 1.250.000 euros for damages (due to hampering the investigation with the theory that the missing child had died).

― From September 2009 on started a long list of trial sessions and hearings. The book was banned, then unbanned (by an Appeal Court, confirmed by the Supreme Court), then banned again (by the First Instance Court that judged the "prejudice and compensation" part), then unbanned by an Appeal Court, confirmed by the Supreme Court.

― From September 2013 on, the "prejudice and compensation" part of the lawsuit started (it never was a libel trial). The MC parents won in the first instance, but their children did not. However the parents made no appeal on their behalf.

― The ex-superintendent appealed and the McCanns lost in the Appeal Court. They appealed to the Supreme Court of Justice (STJ) that issued a ruling confirming the decision of the Appeal Court on January 31, 2017.
(Original Portuguese ruling, translation and notes in English)

― In the STJ ruling, the McCanns allege that they were already cleared through the filing order of the criminal investigation.

― The judges claim that the issue of the appellants' penal liability, in other words their innocence or their guilt concerning the facts leading to the disappearance of their daughter does not have to be appreciated (by the court).

― The judges also underline the serious reservations raised in the filing order as to the likelihood of the allegation that Madeleine had been abducted.

― Furthermore, the Court after reminding that a filing order is not a judicial decision stricto senso, nor does it assume a definitive form, states the following :

Let not be said, too, that the appellants were cleared by the order of filing the criminal proceedings. In fact that dispatch was not proclaimed by virtue of the Public Ministry having gained the conviction that the appellants had not committed any crime. The filing was decided because it was not possible for the Public Ministry to obtain sufficient evidence of the practice of crimes by the appellants. There is, therefore, a remarkable difference, and not merely a semantic one, between the legally admissible grounds of the filing order. Thus it does not appear acceptable to consider that the alluded dispatch, based on the insufficiency of evidence, should be treated as evidence of innocence.

― After over 8 years and a half, and though it shouldn't be induced from the ruling any suggestion of guilt or innocence, the media's headers were :
MCCANNS not in the clear – The Sun 8.02.2017
. MCs not formally in the clear over Madeleine's disappearance – The Mirror 8.02.2017
. Supreme court insists the MCs haven't been proved innocent over their daughter's death –
The Daily Mail – 9.02.2017
. MCs haven't been proved innocent over Maddie's disappearance – Metro 9.02.2017
. UK media rounds on Supreme Court shock that McCanns "have not been proved innocent" – Portugal Resident – 9.02.2017
. Removal of Kate and Gerry’s ‘formal suspect’ status does not mean they are innocent in disappearance of daughter Madeleine McCann, judges say – The Sun – 9.02.2017
. Portuguese Prosecutors never concluded MCs were innocent – Leicester Mercury – 9.02.2017
. McCanns not formally cleared over Madeleine's disappearance – STV news – 10.02.2017
. Madeleine McCann's parents have not been ruled innocent, judge says – The Telegraph – 10.02.2017
. McCanns launch legal fightback against judges' ruling – The Daily Mail – 21.02.2017

No, the Portuguese Justice authorities had not changed their minds, their findings had always been there, clearly written in an official document made available on line and in English, pro bono, by members of the public who cared for facts and translated the legal summary.

No newspaper admitted that they should have checked the facts. Just applying that simple, basic principle !

The following days, political correctness or not, the embarrassing issue, reduced to another kind of biased news was over and never to be heard of again.

5) Concrete Solutions ?

Possible solutions fall into three main categories : synthesize information by human editors, use crowd sourcing (that is, the crowd of Internet users to sort the wheat from the chaff, people being allowed to have an auditor status for example), or find technical or algorithmic solutions.

In February 2017, the newspaper Le Monde launched "Décodex", a device that evaluates the reliability of media sites.

The French private radio Europe1 has a remarkable early morning program called "Vrai-Faux de l'info", 5 days a week. Géraldine Woessner, speaking of true-fake, does not color the world in black and white, there's no nice true and mean fake, the issue isn't to simplify things, but to enlarge the perspectives.

One of the serious difficulties is that people nowadays mainly read titles, lack of time, laziness or rush of uncontrolled and unorganized information’s.

Trusting the opinion of competent people seems inescapable. Can one verify everything to establish absolutely the truth of the facts ? Sometimes we have to rely on someone's testimony, but some witnesses do not really see what happened, some can have a distorted view, some may be shocked, other may invent testimonies that do not exist. Therefore one should not rely on a single testimony but cross-reference data.

Could the criterion of weakness of an opinion be its inability to admit objection? In other words, shouldn’t opinions aiming to be taken seriously be submitted to the possibility of their refutation?

* I wondered whether they would accept a submission from a foreigner, I asked and received this

I received this to acknowledge the reception of my submission :

Then nothing more, not even a link to the Interim Report on July 29, 2018 nor to the Final Report on February 14, 2019.

The secret of life is honesty and fair dealing. If you can fake that, you've got it made" - Groucho Marx
ex moderator
ex moderator

Posts : 34677
Activity : 41927
Likes received : 5932
Join date : 2015-02-02
Location : Flossery

crusader likes this post

Back to top Go down

The Law vs.The McCanns Empty Re: The Law vs.The McCanns

Post by Verdi 30.04.22 14:21


Judgement of Mrs Justice Hogg at the High Court, Family Division, RCJ, London, 7th July 2008, in open court: International Family Law Group

Madeleine went missing on 3 May 2007 just a few days before her 4th birthday, while she was holidaying with her family in the Algarve in Portugal.

On 17 May 2007 Madeleine's parents invoked the jurisdiction of this Court under the Inherent Jurisdiction of the Court, and The Child Abduction and Custody Act, and the Hague Convention. They sought various orders and directions aimed at ascertaining the whereabouts and recovery of Madeleine. I became involved with the proceedings shortly afterwards.

On 2 April 2008 Madeleine became a Ward of this Court, and since that date has remained a Ward.

At all times jurisdiction was assumed by the Court because, there being no evidence to the contrary, it is presumed Madeleine is alive.

She is a British Citizen, and like her parents habitually resident here.

The current application was made on 2 April 2008 by the parents seeking disclosure of information and documents from the Chief Constable of Leicestershire to assist them and their own investigations in their search for Madeleine. Such are the complexities of the issues involved other interested parties were invited and joined to the application, and directions given for the hearing today.

The parties have reached an accommodation whereby the Chief Constable will provide to Madeleine's parents contact details of members of the public who had themselves contacted the parents or their solicitors, and which on receipt were immediately passed to the Chief Constable, together with a brief resume of the information given.

The parents do not wish to pursue other aspects of the application, and save for the draft consent order being approved by this Court wish to withdraw their application and seek leave to do so.

I have no criticism of the parents in making this application. They have behaved responsibly and reasonably throughout.

I have considered the documents provided to this Court by the various parties, and have concluded that the agreement reached by the parties is entirely appropriate, and that the parents should be permitted to withdraw the balance of their application.

I will make the Order by Consent as sought. In particular paragraph 1 of the Order made on the 22 May 2007 shall be varied with the words:

"The terms of this paragraph shall not apply to the Chief Constable of Leicestershire or any other United Kingdom law enforcement agency. And for the avoidance of doubt all the evidence submitted to the Court and the Case Summaries and Skeleton Arguments remain confidential to the Court save that the Chief Constable may use his discretion to disclose his evidence, case summary and skeleton arguments filed in this Court and the Orders of 22 May 2007, 2 April 2008 and this Order. Any other documents and their contents are not to be disclosed to any person or published save in accordance with Orders already made by the Court or further Order of the Court".

It may be noted that neither of the Parents is present today. I let it be known last week that providing their legal team was fully instructed neither parent need be present, and I would not criticise or bear any ill-feeling towards them if they chose to stay away. It was my decision as they have suffered enough, and I wished to ease their burden.

I know the police authorities and other official law enforcement agencies in this country, in Portugal and elsewhere have striven and will continue to strive to trace Madeleine.

I urge anyone who has any information however small or tenuous to come forward now so that further enquiries can be made.

There is, of course, as least one person who knows what has happened to Madeleine, and where she may be found.

I ponder about that person: whether that person has a heart and can understand what it must be like for Madeleine to have been torn and secreted from her parents and siblings whom she loves and felt secure with, and whom no doubt misses and grieves for. Whether that person has a conscience or any feeling of guilt, remorse or even cares about the hurt which has been caused to an innocent little girl: whether that person has a faith and belief, and what explanation or justification that person will give to God.

I entreat that person whoever and wherever you may be to show mercy and compassion, and come forward now to tell us where Madeleine is to be found.

I hope and pray that Madeleine will be found very soon alive and well.

I confirm the Wardship and Madeleine will remain a Ward of Court until further Order of the Court.

The case will be reserved to myself subject to my availability.

The secret of life is honesty and fair dealing. If you can fake that, you've got it made" - Groucho Marx
ex moderator
ex moderator

Posts : 34677
Activity : 41927
Likes received : 5932
Join date : 2015-02-02
Location : Flossery

Back to top Go down

The Law vs.The McCanns Empty Re: The Law vs.The McCanns

Post by Verdi 01.05.22 16:27

'Tapas Seven' Libel Payout, 16 Oct 2008

The Law vs.The McCanns Tapas710

The friends who were with the parents of Madeleine McCann when she disappeared in Portugal, known collectively as the 'Tapas Seven', receive £375,000 in libel damages from Express Newspapers.

The Daily Express, Daily Star and Sunday Express also publish apologies.

Transcript of Fiona Payne's statement outside High Court

16 October 2008

"Good morning.

I'm Fiona Payne and I'm speaking on behalf of the group.

'The abduction of Madeleine McCann, the daughter of our friends Kate and Gerry, on May 3rd 2007, changed all our lives in an instant.

But for no-one more so than Madeleine.

The defamatory stories written about us were not only extremely damaging on a personal level but we strongly feel were detrimental to the search for Madeleine.

This aspect has been particularly heartbreaking to witness.

Although we are very pleased with today's result it changes little when Madeleine's plight remains ongoing: She is still missing and her abductor still free.

Our only aim is to see her safely recovered and reunited with the family who so adore her.

All the damages received today are being paid directly into the Find Madeleine Fund to continue this ongoing search and investigation into her disappearance.

We believe that Madeleine is still alive and can be found.

We ask anyone who has any information, however small or seemingly unimportant, please come forward.

Contact details can be found on the Find Madeleine website.

And finally, we thank wholeheartedly all those who have already helped in the search for Madeleine.'

Thank you."

Press Release Carter-Ruck

"Tapas Seven" Secure Apologies and £375,000 in Libel Damages from Express Newspapers

16 October 2008

The Daily Express and Daily Star newspapers have today published full apologies to Jane Tanner, Russell O'Brien, Fiona Payne, David Payne, Matthew Oldfield, Rachael Oldfield and Dianne Webster, the group of friends who were with Kate and Gerry McCann when their daughter Madeleine was abducted in Portugal in May 2007. The Sunday Express will be publishing a separate apology to Russell O’Brien and Jane Tanner this Sunday.

Between July and December 2007 these newspapers published around twenty articles, falsely alleging that the friends, who became known in the media as the "Tapas 7", were to be suspected of involvement in Madeleine's abduction and of having misled the Portuguese authorities investigating her disappearance. The articles also falsely suggested that the seven had covered up the true facts concerning Madeleine's disappearance.

As well as publishing apologies, the Express Group further apologised in the High Court in London today before Mr Justice Eady.

The solicitor representing the seven individuals, Carter-Ruck partner Adam Tudor, told Mr Justice Eady that Express Newspapers had acknowledged the complete falsity of the allegations in question and that there was no evidence to support them. The newspapers also acknowledged that the actions of the individuals following Madeleine's disappearance were entirely proper and motivated solely by a desire to find Madeleine and support Kate and Gerry McCann at such a difficult time.

Express Group has also agreed to pay libel damages of £375,000 to the seven, every penny of which will be donated, at their request, to the fund established to help find Madeleine. Express Newspapers will also be paying the legal costs of bringing the complaint.
Statement in Open Court Carter-Ruck

(1) Jane Tanner (2) Russell O'Brien (3) Fiona Payne (4) David Payne (5) Matthew Oldfield (6) Rachael Oldfield (7) Dianne Webster and Express Newspapers

16 October 2008

Solicitor Advocate for the Claimants
My Lord, in this action I appear for the Claimants Jane Tanner, Russell O'Brien, Fiona Payne, David Payne, Matthew Oldfield, Rachael Oldfield and Dianne Webster.

My friend Mr Keith Mathieson appears for the Defendant, Express Newspapers, which publishes the Daily Express, the Sunday Express and the Daily Star.

The Claimants are all friends of Kate and Gerry McCann and were holidaying with the McCanns in Praia da Luz, Portugal, in May 2007.  On the night of Madeleine McCann's disappearance, the Claimants were dining with the McCanns in a restaurant close to the McCanns' apartment. The Claimants have frequently been  referred to in the media and have become popularly known as the "Tapas 7".

Between July and December last year, the Defendant published a number of articles which referred to the Tapas 7 or to one or more of the Claimants individually.  These articles  suggested that at least some of the Claimants, in particular Dr O'Brien, had been identified as potential suspects by the Portuguese authorities.  The articles also suggested that the Claimants had covered up the true facts concerning Madeleine McCann's disappearance and misled the authorities investigating her disappearance.

The Defendant accepts that these  allegations are wholly untrue and that there is no evidence to support them. The Defendant acknowledges that the actions of the Claimants following Madeleine's disappearance were entirely proper and were motivated by a desire to find Madeleine and to support the McCann family through a very difficult and stressful time.

The Defendant is represented here today by its solicitor in order to apologise for the distress and embarrassment caused to the Claimants. Full apologies are also being published by the three newspapers in question. As an expression of its regret, the Defendant has agreed to pay substantial damages to the Claimants, which they will donate to the Find Madeleine Fund.  The Defendant has also agreed to pay the Claimants' legal costs.

Solicitor for the Defendant
My Lord, on behalf of the Defendant, I confirm what my friend has said.

The Defendant apologises to each of the Claimants for publishing false allegations about them. The Defendant regrets the distress caused to the Claimants and in acknowledgment of that I confirm that the Defendant has agreed to pay substantial damages to the Claimants, which they will donate to the Find Madeleine Fund, and to pay their legal costs.

Solicitor Advocate for the Claimants
My Lord, in all the circumstances, I am pleased to confirm that the Claimants' objectives in bringing these proceedings have been achieved.

Adam Tudor
Solicitor Advocate on behalf of the Claimants

Keith Mathieson
Reynolds Porter Chamberlain
on behalf of the Defendant

The Law vs.The McCanns Tapas711
Kate and Gerry McCann friends arrive at High Court

[Acknowledgement pamalam gerrymccannsblog]

The secret of life is honesty and fair dealing. If you can fake that, you've got it made" - Groucho Marx
ex moderator
ex moderator

Posts : 34677
Activity : 41927
Likes received : 5932
Join date : 2015-02-02
Location : Flossery

Back to top Go down

View previous topic View next topic Back to top

- Similar topics

Permissions in this forum:
You cannot reply to topics in this forum