Carter Ruck and their keynote speaker in 2009

With thanks to: http://joana-morais.blogspot.com/2009/10/international-bar-association.html

Just came across this and wondered about 2009, legal advice and the information contained in this extract on libel  tourism and the European Court of Human Rights having declared that reputation is a human right.

As this is also the year that the case against GA started I wonder if advice from CR was also given or asked. 

In any case the keynote speaker was the man himself in Madrid:

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5 OCTOBER 2009 | POSTED BY [You must be registered and logged in to see this link.] [You must be registered and logged in to see this link.]

Media Law Committee Sessions [You must be registered and logged in to see this link.]

Chair - Mark H Stephens Finers Stephens Innocent, London, England; Council Member, Human Rights Institute
International approaches to reputation management

Session Co-Chairs
Mark H Stephens Finers Stephens Innocent, London, England; Council Member, Human Rights Institute
[You must be registered and logged in to see this link.]Nigel Tait Carter-Ruck, London, England; Publications Officer, Media Law Committee

In this session leading media lawyers will explore the different approaches that can be adopted by lawyers in various jurisdictions to protect the reputations of their clients, whether individual or corporate.

Amongst the topics that the panel will examine during this lively interactive session are 'libel tourism', the challenges presented by online publication and the consequences for freedom of speech now that the European Court of Human Rights has declared that reputation is a human right.

Mr Gerry McCann will be the keynote speaker. Mr McCann and his wife Kate found themselves facing the unrelenting glare of the world’s media following the abduction of their daughter, Madeleine, in May 2007. Mr McCann will speak about their fight to hold the press to account following the publication of defamatory allegations and their securing of unprecedented front page apologies from four national newspapers, together with £550,000 in damages (which were paid to the fund set up to search for Madeleine).

Keynote speaker
Gerry McCann Father of Madeleine McCann, England

Speakers
Herman Croux Marx Van Ranst Vermeersch & Partners, Brussels, Belgium; Chair, Copyright and Entertainment Law

Subcommittee
Roger Mann Damm & Mann, Hamburg, Germany;
Julian Porter QC Toronto, Ontario, Canada
Kelli L Sager David Wright Tremaine LLP, Los Angeles, California, USA; Vice-Chair, Media Law

Committee
Paul Tweed Johnsons Solicitors, Belfast, Northern Ireland

*

Committee news would like to commend the superb quality of this edition of our Committee publication and convey thanks to our publications officer, Nigel Tait (and his colleague Athalie Matthews) of Carter Ruck in London for his efforts in producing such a great edition. I look forward to seeing many of you in Madrid where we have a full and lively programme including Mr Gerry McCann who will talk about the loss and search for his daughter, Madeleine, and the challenges of the media traducing his reputation in the wake of that loss. We are holding a networking dinner (together with the Technology Law Committee) in Madrid on Thursday 8 October at 9.30pm at Casino de Madrid (Glorieta Room) – which should allow you time to circulate round a few cocktail parties first. Do book early as we expect this event to sell out quickly. Further details about the Madrid conference are available on page 6.

Finally, please do send me any suggestions that you have for the IBA Annual Conference in Vancouver in 2010.

Best wishes
Mark Stephens

*

Lessons learned the hard way: the reporting of the Madeleine McCann investigation

The tragic disappearance of three year old Madeleine McCann from a holiday apartment in Portugal has without doubt been one of the most prominent news stories in the UK for many years, and attracted considerable media coverage around the world.

Madeleine was abducted on the night of 3 May 2007 while her parents Gerry and Kate McCann dined with friends in a nearby tapas restaurant. The alarm was quickly raised to try to find their daughter, and public interest in the story fuelled a voracious desire by the media to report on the investigation and on Madeleine's likely whereabouts.

Although the case of Madeleine McCann is in many ways – thankfully – unique, the reporting of the investigation highlights a number of interesting aspects of English media law.

Beyond the reach of contempt of court laws

When the story broke, the media was immediately faced with a problem: there was enormous public interest in Madeleine's fate, but Portuguese law forbade either the police or, to a considerable extent, the McCanns themselves from providing information to the press about the investigation.

Unlike in the UK, where the police routinely brief the press on major investigations (both officially and off the record), journalists found themselves in a complete vacuum of confirmed facts yet under enormous editorial pressure to get a scoop on the latest developments.

What ensued was increasingly wild speculation about what had happened to Madeleine, as the finger of suspicion was pointed at a number of individuals – including, most notably, Madeleine's parents.

Kate and Gerry McCann were named as 'arguidos' by the Portuguese police on 7 September 2007 – which in fact meant they were 'persons of interest' to the Portuguese police, rather than that they were formally suspects, as the term 'arguido' was frequently mis-translated by the British press.

It was during this time that the McCanns were interviewed by Portuguese police, which sent the media into a frenzy of even wilder speculation.

Had the case concerned a criminal investigation in the UK, then the press would have been far more restricted by the laws of contempt of court. Section 2 of the Contempt of Court Act 1981 makes it an offence of strict liability to publish anything which creates a 'substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.' The provision applies only to 'active' proceedings, which in essence means after someone has been arrested for, or charged with, a criminal offence. Although the McCanns were not arrested or charged under Portuguese law, the Contempt of Court Act in any event applies only to criminal proceedings brought in England, Wales and Northern Ireland; as such the media were able to report on the police investigation into the McCanns' alleged involvement with scant regard for how their coverage may ultimately prejudice any prosecution.

Wrongly accused

Of course, no prosecution was ultimately brought against the McCanns; having protested their innocence throughout, the Portuguese Prosecutor finally exonerated them on 21 July 2008 when their 'arguido' status was lifted and it was confirmed that there was no evidence whatsoever to suggest that they had played any part in their daughter's disappearance.

But throughout the autumn and early winter of 2007, the McCanns had continued to be the focus of relentless, and at times hysterical media coverage which made various allegations to the effect that they had killed their daughter and had conspired to cover-up her death.

Pleas made to the press to exercise greater caution and balance in reporting the story fell on deaf ears, and when the onslaught of allegations continued the McCanns decided they had to take action – not least because they feared that the campaign to find Madeleine would be irreparably damaged for as long as the public was misled into believing (entirely wrongly) that her parents had killed her.

In January 2008, complaints in libel were sent to four national newspapers published by the Express Group – the Daily Express, the Daily Star and their sister Sunday titles. These newspapers more than any had published grossly defamatory articles about the McCanns, often under sensational front page headlines such as 'PARENTS' CAR HID A CORPSE' and 'MADDIE MUM "SOLD HER".'

Because of the news 'vacuum', many of the articles complained of appeared to be based on nothing more than speculation, information from purported (but unnamed) 'police sources', and allegations regurgitated from the Portuguese press.

It is open to a newspaper to defend a libel complaint on a number of grounds. The most obvious defence is that of justification – if a defendant can prove that the allegations it published were substantially true, then the libel claim will fail. However, given the lurid and utterly baseless allegations which the McCanns complained about, a defence of justification seemed out of the question.

A second defence open to media defendants in England and Wales is that of Reynolds qualified privilege – responsible journalism on a matter of public interest. This defence is in a state of evolution, but there is an increasing body of English law which suggests that neutral reporting of serious allegations over a long period may be defensible, especially on a matter of high public interest – even where those allegations turn out to be untrue. However, it was immediately apparent that on any analysis the Express and Star's journalism was anything but responsible. While their journalists may have hoped that including token references to the McCanns' denials of wrongdoing may have been sufficient, it was clear that this did nothing to provide the balance necessary for a Reynolds defence to succeed.

It was perhaps unsurprising, therefore, that the Express Group responded to the McCanns' libel complaints by admitting liability for the libels it had published about them.

Righting the wrong

The volume of the libellous coverage published – over 100 articles were complained about, many of them front-page – was unique in the history of English libel law. In the circumstances, the Express Group were forced to agree to take the equally unprecedented step of publishing prominent apologies on the front pages of the four newspapers in question.

The highly unusual nature of the complaints also had an effect on the damages which were claimed from the Express Group.

Under English libel law, general damages have for some time been effectively 'capped' in the region of a £200,000 to £250,000 maximum for awards made at trial, amounts which would of course be reduced where cases settle out of court.

However, quite apart from the fact that Gerry and Kate McCann were each entitled to claim separately for the damage they had each suffered, their case appeared to be in the territory of a potential exemplary damages claim.

Exemplary, or punitive, damages are available only in limited circumstances under English law – in libel proceedings the claimant must prove that the defendant has published the articles complained of 'with guilty knowledge, for the motive that the chances of economic advantage outweigh the chances of economic penalty' (Broome v Cassell 1972 A.C. 1027 at 1079). In practice, this can be a very difficult hurdle for a claimant to overcome, as not only does it involve demonstrating that the defendant was, at the very least, reckless as to the truth or falsity of the allegations complained of, but also that it acted in the hope or expectation of material gain.

Newspapers of course contain a large number of articles, so it will usually be impossible to prove that when the defendant took the decision to publish the article complained of, it expected this would lead to an increase in sales.

However, the sheer number of Express Group articles containing allegations about the McCanns – together with anecdotal evidence to the effect that a front-page article about Madeleine McCann added as many as 70,000 copies to the circulation of the Daily Express – suggested that a credible case for exemplary damages may be made out by the McCanns.

In the end, the question did not have to be decided in court, as the parties were able to agree an out of court settlement. However, the total amount agreed – £550,000, which was donated at the McCanns' request to the Find Madeleine Fund – suggests that the Express Group may have accepted that there was a real risk of an exemplary damages award being made against them if the matter did ever come to court.

The front page apologies and damages paid to the McCanns on 19 March 2008, together with the subsequent exoneration of the McCanns by the Portuguese prosecutor, have not only gone a long way to repairing the damage caused to the McCanns' reputations by the press, but have also undoubtedly caused the press to question their reporting methods in ongoing criminal investigations. Such are the repercussions of the case that it forms a central part of an ongoing UK Parliamentary inquiry into press standards, privacy and libel – indeed Mr McCann has recently given evidence to a government committee hearing on his family's experiences of the media.

As Kate and Gerry McCann's search for their daughter continues, it is to be hoped that the press as a whole has learned from what proved to be a very expensive lesson for the Express Group.

How ridiculous - all that verbiage is merely based on what their clients told them. Duh 

And even lawyers say they have been "exonerated" !
Perhaps they in turn fear being sued !

Perhaps Carter Ruck may sue the Assistant Chief of Leicstershire Police force for the Statement he made, which spoke of the couples possible involvement of a crime?

Quite so
Kate McCann in her book madeleine provided an excerpt from the official submission of Leicester Police to the court regarding the matter and outlining the reasons why they could not agree to provide the documents. Signed by the Assistant Chief Constable (Crime) of Leicestershire it runs:

"While one or both of them may be innocent, there is no clear evidence that eliminates them from involvement in Madeleine's disappearance.

Is 'not eliminated' the same as 'exonerated' ?

September 2013, Lisbon 
Alan Pike in court : 

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Gerry McCann: [..]I’m very much speaking regarding our own personal experience of the trauma that we’ve been caught up in.

I think Nigel’s already pointed out some of the main facts. We were on holiday on the 3 May 2007 when Madeleine was abducted from the apartment we were sleeping in. [..] And in 2008 we had several libel claims for defamation, and invasion of privacy. Later that year, as Nigel says, the file was closed and the Portuguese judiciary concluded that there is no evidence to support any of the allegations against us and we have continued and ongoing action within Portugal, which I’m not going to speak of very much because it’s still in the judicial process.
](very neatly skating over leaving children alone, beautifully phrased to include themselves in the situation. Also a somewhat creative interpretation of the PJ report which does afaik not exonerate them).[..]

The first thing to say is that you know, it’s not compulsory; I think most people feel that when they’re caught up in a trauma, that they should interact with the media. Any parent in this audience will understand the complete devastation that we felt when we discovered Madeleine was gone, and particularly within the first few hours when the search around the vicinity of Praia de Luz found no trace of her, and we felt completely devastated. And in the early hours of the morning we phoned family and close friends to tell them of what happened[..]And actually several people independently contacted the media to tell them what had happened and in fact a very close friend was already distributing photographs of Madeleine to all the major news outlets in the early hours of the morning, which we didn’t know.
(Again, very neat. No hint that they were not taking part in the search, saddling the friends and relatives with contacting the media and giving an explanation of Jon Corner having so many photographs ready at that time of night – there were some 25 SMS and mobile calls between Kate and Jon Corner between midnight and 04.00)


[..]The fact that we were doctors seemed to influence things and that this had happened to professional couple and I think Madeleine’s picture herself that she was such a beautiful innocent young girl who was taken and clearly many of the journalists involved felt a great deal of empathy with us as well.
(I’m fed to the back teeth with the ‘beautiful’  - it’s the weirdest way to describe a child you’ve just lost imo. Kate has also said something on the lines of ‘please look for Madeleine, she’s lovely.’)
[..]we had counselling sessions within 36 hours of this happening and I have to say it played a tremendous part in helping me cope with the situation and try to do things to influence the outcome. I’d like to play a video, if we can get this.
Video: ‘One cannot describe the anguish and despair that we are feeling as the parents of our beautiful daughter, Madeleine. [..]to allow us to continue assisting the police in their investigation. Thank you.’

[..]
We took advice from the crisis management team and Alex Woolfall was absolutely brilliant. What he said to us was that for any media that you do, you must clearly define what your objective is from doing the media and secondly, ask yourself the question, how is it going to help, and that helped us tremendously with our future press conferences, statements and photo calls. We also did a number of TV and magazine interviews[..]
This early media coverage was generally very, very supportive. The largest weekly newspaper in the United Kingdom, the News of the World, had got a number of celebrities to agree to contribute to an award and £1.5 million was pledged. Additionally we had a businessman from Scotland who pledged another £1 million. There was, without doubt, unprecedented public interaction.

There were a huge amount of posters put up all over the United Kingdom and further afield and generally there was a focus on trying to find Madeleine and/or her abductors. The poster in the middle was released with JK Rowling’s last Harry Potter book [..]
(Another neat liberty with the truth. TM wrote to JKR to ask if a bookmark could be inserted in each book. JKR refused but a poster would be displayed in the bookshops.)

In June 2007, after we completed our visit, we tried to signal a change in our strategy. We appointed a campaign manager and her role was not directly a spokesperson. We anticipated that the media interest would naturally dwindle and the role was really about ensuring that we could maintain a search in the long term. We also signalled that Kate and I would not be making regular press statements or conferences and we asked the media to no longer photograph our two-year-old twins. We hadn’t asked for that immediately, primarily because I just didn’t think it was enforceable, given the huge amount of media attention and particularly in another country. We might have managed it in the UK but even I doubt it there.

Towards the end of August and September 2007 there was really quite a dramatic change in the media coverage. We were declared arguidos, [..] being given the status of arguidos is actually to protect your own legal interest, and whereas that was just translated as suspects, and very much led to a number of damaging headlines.
[..]We also had further discussions with the Press Complaints Commission about how we may stop such coverage but despite these actions, the front page headlines continued and the previous ones all happened within a week of us coming back from Portugal. These ones are later. We are now into October and DNA reference once again; further ones in October. Now into the end of November and getting increasingly bizarre and ultimately in the space of five days, there were three front page headlines in January of 2008, that were regurgitating the same stories and for us, we come to breaking point. And at that point, although we’d had discussions earlier with Carter Ruck and Adam Tudor who’s here today, we felt enough is enough and we agreed to issue complaint letters against the worst offender and we also got an agreement from Carter Ruck that if the case did go to court, then they would represent us on a conditional fee arrangement, which was very important to our decision to press the button.
(Lots of information here, Gerry McCan met with Christopher Meyer at his house on the 13th of July 2007.  Sir. C. told him that he could help him but that they didn’t do money. Must have slipped his mind.. It was the McCs who decided not to use the PPC who had offered their services very early on. – see also Press and the McCanns, fytton.blogspot.nl  - the evidence given by Sir. Christopher Meyer is  not at all what  Gerry McCann's version of events suggests) .


[..]And there were certainly discussions that if this had gone to court, we could have argued for exemplary damages and to be honest the QC whose counsel we took, suggested that the damages we could have got would have been much, much higher than what we accepted.
(Wonder who that QC was and the interesting bit here is that they didn’t want to go to court despite this advice?)

These really are just some thoughts for the future rather than anything that may be enforced in law, but we do know, and the media know, that they’re incredibly powerful [..]  if we had not been supported as well as we had, by many different people including Carter Ruck, then they could have destroyed our lives and what was already seriously damaged.
unquote
(Leveson is still nearly two years away as is Hacked Off , this speech deals only with the press and the McCanns, gives false information on who called the press .Rachel M isn’t mentioned and Gerry’s call to Sky in September ‘’Be there!’ isn’t either).
They organized photoshoots in PdL, the twins were photographed frequently, interviews were arranged and rehearsed, they had the press firmly controlled up to September 2007. I love the way he mentions the support of the press and all the money that was pledged in the early days of wine and roses…

Gerry McCann: [..]I’m very much speaking regarding our own personal experience of the trauma that we’ve been caught up in.

I think Nigel’s already pointed out some of the main facts. We were on holiday on the 3 May 2007 when Madeleine was abducted from the apartment we were sleeping in. [..] And in 2008 we had several libel claims for defamation, and invasion of privacy. Later that year, as Nigel says, the file was closed and the Portuguese judiciary concluded that there is no evidence to support any of the allegations against us
----------------------------------------------------------

1)  'when Madeleine was abducted'

WHO are the ONLY two 'people', in the world, to have EVER 'claimed' THAT?

2) "Later that year, as Nigel says, the file was closed"

The file was NOT 'closed', but 'shelved' pending possible new evidence being produced

3) "Portuguese judiciary concluded that there is no evidence to support any of the allegations against us"

WHAT (specific?) 'allegations'?

(specific?) 'allegations' made, against them,.......... by who?

Lots of 'theories' but (specific?) 'allegations'?

McCann's were never 'questioned' under 'caution'

They were given 'arguido' status.

The McCann's have NEVER, been 'cleared of involvement' (in Madeleine's 'disappearance') by ANY 'judiciary', whether Portuguese, or not.

THE MCCANN'S HAVE NEVER BEEN OFFICIALLY 'CLEARED' BY ANYONE.

The PJ 'concluded' that the McCann's 'should be re-interviewed' (10th September, 2007)

"So we suggest that the 'Autos' be sent to the EX.mo Sr. Procurador Geral da R'ublica [General Attorney], in order to:

G) New interrogation of the Arguidos Kate and Gerry McCann;"

On the tenth of September, two thousand and seven

Chief Inspector

(Tavares de Almeida)

But the McCann's had 'done a runner' on the 9th September, 2007, alongside, 'family' and all UK police officers, who had been 'in' Portugal, until then..

istbc, on 'anything' above.

'speaking' of 'officialdom'

Does anyone 'know' if the 'honourable' (libel case) Judge Maria Emília Melo e Castro, is still erm, 'judging' on the Portuguese law 'circuit'?

Is Judge Maria still 'judging'?

Has Judge Maria taken early 'retirement'?

Has Judge Maria's 'standing' (after her judgement in McCann's vs GA) amongst her 'peers and colleagues'........'risen or fallen'?

Has Judge Maria 'disappeared' from 'public life'?

Will, Judge Maria, 'hear' GA's 'appeal' or can she 'delegate' the appeal 'hearing' to another Judge/Court?

Is the GA 'appeal' to be 'heard' in a seperate (higher?) court, than Judge Maria's?

I'd imagine Judge Maria would have an, in English, 'a/an own interest conflict' in not 'finding' her libel case 'judgement' wrong.

Boring, i know, just 'asking'.

Hi Jeanmonroe
Let us hope that a certain Lord Burns not be available for any appeal with regard to Mr Goncalo Amaral after judging the Andy Coulson calamity?

From the Leveson enquiry: 

Sir Christopher Meyer: We did a lot. We were in pretty close contact with the press handlers of the McCanns. [..] ..you can’t be more royalist than the king on these matters. You cannot wish to stop something more ardently than the first party. But by that time I think they had chosen to go to law. [..] But I have to say to you - this is so important - we’d made particular efforts with the McCanns to make ourselves available. Within 48 hours of Madeleine McCann disappearing, we informed them through the British embassy in Lisbon that we stood ready.  [...] I go back to this again: you can’t wish for something more than the first party themselves, and I think Dr. McCann has expressed rather well the complexity of the situation in which he found himself. He needed the press, but he didn’t need those articles. He had professional handlers and I can’t say more than that. 
But on the 25th August 2007 the PCC got no mention - TM was still alone in the wilderness it appears.  Perhaps that was because Sir Christopher Meyer had already told him they didn’t do money? In July of 2007 -  GM was in the UK at that time.
Professional handlers?  Hmmm. But here is Gerald Patrick McCann also at the Leveson: (seems he misinterpreted Sir Christopher's advice. Reading these extracts from the Leveson enquiry (remember under oath) he now says that Sir C advised him to sue, yet Sir C. says that you can't help someone who does not want to be helped. Seems that the last thing TM wanted was for the PCC to do its job. 


106. The advice we had from our lawyers was that the press would not consider an adjudication from the PCC to be a deterrent. We were advised, and this was confirmed by Sir Christopher, that an effective remedy to prevent further damaging articles could only be achieved through the Courts and that the PCC were essentially powerless in stopping the Press pre-publication. [..]
114.One of those we met was Rebekah Brooks who was very persuasive. [..] Rebekah said that she would actively assist us in seeking a review and set out various ideas of how The Sun could help. It was this campaign [..] that persuaded us to agree to serialised extracts of kate’s book being published in The Sun and The Sunday Times. 
-----------------------------------------------------------------------
After the publication of the diary : The NotW agreed to publish an apology to Kate and to pay a financial donation to further the search for Madeleine. (£ 125,000,- - [You must be registered and logged in to see this link.])  Express paid £ 550,000.- Associated Newspapers paid £ 375,000.- to Tapas friends who passed the money to TM. 

Apparently NOT.

Private Eye No 1395, 26 June - 9 July 2015.
p. 20

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All you've got to do is PAY.
The Guardian article is worth another read
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The libel lawyer Peter Carter-Ruck, who died on Friday, had a chilling effect on the media. He was a chancer, out for the maximum fee. And he did for freedom of speech what the Boston Strangler did for door-to-door salesmen. . .Libel was good to him: four homes, a Rolls-Royce and a string of yachts called Fair Judgement. But perniciously he built a libel factory, paid for by the media's legal and insurance bills. Carter-Ruck had some novel techniques. You could only settle a libel action by paying his exorbitant fees without any question of the bill being checked by the court. He hit upon the wheeze of Randolph Churchill retaining all the libel QCs to prevent them acting for Private Eye (a practice since banned) and of serial libel actions, as in the case of Princess Elizabeth of Toro (which brought us the term "Ugandan discussions").

Nothing seems to have changed.