It is interesting to note that at first instance, the McCanns application for an Injunction was not granted and they went to the Appeal Court where they were then successful. The Judge recognised that Goncalo's right to freedom of expression was equal to the rights of Madeleine, Sean, Amelie, Kate and Gerry but in the end determined that given the criminal process against the McCanns had been archived their rights prevailed. They do have the right to be treated with respect and their family life and personal safety respected whilst there are no criminal charges against them, no one can take the law into their own hands. Fundamentally, I would say it is a decision for Madeleine. It has not been proven that she is dead and she has the right to be treated as a missing person and a search for her continued until it can be fully established what happened to her. The Judge also recognised that dissemination of such information by Goncalo could damage the ongoing investigation into what happened to her. British Police have confirmed, many times that continues. This is not a decision declaring they are innocent it is simply upholding their civil rights. It is not up to a civil court to determine criminality and they have not attempted to do so.
Viv x
This is a translation of the text of the Civil Court ruling that granted the temporary injunction on Gonçalo Amaral’s book, ‘Maddie – The Truth of the Lie’, and the corresponding DVD. It was issued on the 9th of September, 2009. The numbered notes [x] are from astro, for clarification purposes only. It should also be recalled that this injunction was granted exclusively based on the evidence that was provided by the Applicants. The Defendants were only allowed to oppose the injunction after it had been granted.
CONCLUSION – 09-09-2009
In this process of common injunction that is being handled at this court and section under the number 1143/09.0TVLSB, the Court decides to reply to the factual matter that appears in the initial request, and that has been subject to proof in fulfilment of the Appeals Court Decision [article 13, in the factual segment that appears on page 15 of said decision, articles 58 to 67 and 92 of the corrected initial request] [1], as follows:
Article 13: Not proved;
Article 58: Not proved;
Article 59: Proved that curricular pieces concerning the first Defendant [2] are published on the internet, referring to him as an honest, structured, socially accepted man, namely for the performance of political posts;
Article 60: Proved that the media focus hit the first Defendant;
Article 61: Proved;
Article 62: Proved that the first Defendant knows the meaning and the extent of an archiving dispatch within a criminal process;
Article 63: Proved that the first Defendant knows who holds power over the inquiry, who can open or reopen it, and under which circumstances that can be done;
Article 64: Proved that the first Defendant knows what defamation and injury are;
Article 65: Proved that the first Defendant knows what it means not to be at the service of criminal investigation;
Article 66: Proved that the first Defendant has professional experience and is of adult age;
Article 67: Proved that by divulging his thesis about the events of the 3rd of May, 2007, in Praia da Luz, the first Defendant, with the assistance of the three other Defendants [3], saw his person promoted and earned money.
Also proved that the first Defendant wished to intervene in local political life.
Article 92 – Proved that the Defendants intend to disseminate the book and the DVD all over the world, earning financial, commercial and social profit, deepening the suffering of the two first Applicants [4] and rendering the search for the third Applicant [5] more difficult.
**
For the preceding decision concerning the matter of fact, the Court has pondered the documents that have been appended to the process, as well as the depositions from the questioned witnesses [6], in the segments in which they revealed direct knowledge about the facts that they were questioned upon. The Court has also used judicial presumptions, namely in the answers to articles 60 and 62 to 66.
Concerning the depositions of witnesses 1 to 4, it has to be noted that those have been essentially characterised by the transmission of their opinions, deductions and personal convictions. It was nevertheless revealed that they manifested direct knowledge of the increase in difficulties and obstacles to the ongoing private investigation that searches for the third Applicant, which is being promoted by the first and the second Applicants, each time that new editions or the announcement of future editions of the book, interviews with the first Defendant, or divulgations of the DVD take place.
The depositions, especially from the third and fourth witnesses, were equally considered, concerning the direct knowledge that they demonstrated over the intensification of the suffering of the first and second Applicants, each time de first Defendant’s thesis was newly divulged – whether through the existence or the announcement of a new edition of the book, or a new divulgation of the video or by the occurrence of interviews – mainly due to the repercussions that such events have on the search for the whereabouts of the third Applicant and due to potentiating the knowledge of said thesis by the fourth and the fifth Applicants [7].
Concerning the fifth witness, although her knowledge of the facts that she was questioned about comes from a set of investigative tasks that tend to sustain the allegation that is made in this injunction, what is certain is that, together with the documents that have been appended to the process, it was possible to establish that the book in question has already been subject to a Spanish edition in May 2009, a French one in June 2009, a German one (also for the Swiss and Austrian markets) in June 2009, then an Italian and a Dutch one, and Defendant ‘Guerra e Paz’ has also launched an edition in Brazil [8].
This is, in synthesis, the basis for the previous decision concerning the matter of fact.
**
REPORT
The five Applicants move the present injunction against the duly identified Defendants on page 38 [given the fact that the initial request with the corrected numbering, which has been appended on 20/05/2009, is being attended to], alleging, in synthesis, that the first Defendant’s thesis about the events that took place in Praia da Luz in May 2007 – which relate to the disappearance of the third Applicant, which took place at that time -, which have been put into the book that he authored, that was published by the second Defendant, that sustains the video that was produced and marketed by the third Defendant and was broadcast by the fourth Defendant as a television documentary, have already violated several rights of all of the Applicants and cause them fear of future, serious and hardly repairable damage of the following rights:
a) The rights of Madeleine (the third Applicant) to her moral and physical integrity and to a fair and adequate investigation into her disappearance, in the future;
b) The rights of Sean and Amelie (the fourth and fifth Applicants) to their moral and physical integrity and to a fair and adequate investigation into the disappearance of their elder sister, in the future, as well as their right to the reservation of private and family life and to the good name of the family that they belong to, their right to freedom and to security;
c) The rights of Kate and Gerald McCann (the first and second Applicants) to their image, to their good name, to their good reputation and to the preservation of the integrity of their private and family life, their right to freedom and security, the right to their moral integrity, the right not to be treated in a degrading, cruel or inhumane way, the right to enjoy, like any other citizen, the guarantees of the penal process.
On these fundaments, they conclude by requesting the determination of the following measures:
a) The prohibition of sale and the order to seize, for destruction, the books and the videos that are still left at shops or any other deposits or warehouses;
b) The prohibition to execute new editions of the book or the video, or of other books and/or videos, that defend the same already criticised thesis, and that are destined to be sold or divulged by any means, in Portugal;
c) The prohibition to cede the editing rights or the author rights on the contents of the book or the video, or of any other books and videos on the same subject, for publication in any part of the world;
d) The prohibition to cite, to analyse or to comment, verbally or in writing, on parts of the book or of the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the two first Applicants;
e) The prohibition to reproduce any comment, opinion or interview, where said thesis is defended or can be inferred;
f) The prohibition to publish statements, photographs, or any other documents that are allegedly connected to said book and video or said thesis.
According to what was established by the Appeals Court’s Decision and considering what has resulted from the production of evidence during trial, the following FACTS are proved in an indicative way:
1 – On the 24th of July of 2008, the first Defendant launched in Portugal, under edition of the second Defendant that reserved all rights to itself, the book that he has authored, “Maddie A Verdade da Mentira”;
2 – In that book, the first Defendant defends the thesis of death of the third Applicant and the concealment of her cadaver by the first and second Applicants;
3 – Said book attained 4 editions until the end of July of 2008, 9 editions until the end of August of 2008, and 12 editions until the end of September of 2008;
4 – Each edition was of 10.000 copies;
5 – Presently the book is sold out at practically all points of sale;
6 – When said book was published, the first Defendant gave interviews to all of the media that requested him to, namely to RTP [9], and defended the thesis that he presents in the book, in those interviews;
7 – The first Defendant also gave, among others, an interview to newspaper “Correio da Manhã”, which was published on the 24th of July of 2008, in which he defended the thesis that he presents in the book;
8 – At the beginning ot May of 2009, the same book was published in France, now under the title “Maddie, L’Enquête interdite: Les revelations du commissaire portugais chargé de l’enquête”;
9 – The first Defendant gave countless interviews to several media in France, including the one that was published in the newspaper “Le Parisien” and on the matching internet site;
10 – In those interviews, the first Defendant again mentioned the theses that he presents in the book;
11 – The book’s French edition is systematically and profusely published on the internet, at least on:
http://joana-morais.blogspot.com/2009/05/goncalo-amaral-maddie-lenquete.html
hhtp://sosmaddie.dhblogs.be/archive/2009/05/09/Maddie-1-enquete-interdite-en-belgique1.html
http://www.the3arguidos.net/forum/viewtopic.php?f=35&t=31806&sid=abe61a1c34b42a74ad5a2e50f315c20d&start=0
hhtp://twitturly.com/url/a194ef0f54f1985133b2ff092ddcf75d
http://www.bourin.editeur.fr/livre/maddie-1-enquete-interdite-les-revelations-du-commissaire-portugais-charge-de-1-enquete.html
http://www.amazon.fr/Maddie-lenq%C3%AAte-interdite-Amaral-G/dp/2849411256
http://www.decitre.fr/livres/Maddie-l-enquete-enterdite.aspx/9782849411254;
12 – Between the publication of the Portuguese edition, on 24/07/2008, and the publication of the book’s French edition, in May of 2009, the fourth Defendant broadcast a television programme that was produced by the third Defendant, that reserved the possession of the corresponding rights for itself;
13 – The first broadcast of said television programme took place on the 13th of April of 2009;
14 – The second broadcast of this television contents took place on the 12th of May of 2009;
15 – That programme was broadcast in Portugal at least those two times;
16 – That programme/video is intrinsically based on the contents of the book “Maddie A Verdade da Mentira”;
17 – In that video the first Defendant again sustains his thesis, that the third Applicant is no longer alive, that her death took place inside the “Ocean Club” apartment and that the parents, the first and second Applicants, concealed their daughter’s cadaver;
18 – At least two million and two hundred thousand people watched that programme’s first broadcast;
19 – In late April of 2009, the DVD that corresponds to that programme started being sold, with the title and the subtitle «Maddie A Verdade da Mentira – Um poderoso documentário baseado no best seller “A Verdade da Mentira” de Gonçalo Amaral» [10];
20 – 75.000 copies of that DVD were put on sale;
21 – The DVD is publicised, at least, on the third Defendant’s website;
22 – The first and the second Applicants are married to each other and the parents of the third, the fourth and the fifth Applicants;
23 – In the Criminal Inquiry in which the first and the second Applicants were made arguidos, an archiving dispatch was issued concerning them, as per appended copy, pages 145-173;
24 – Madeleine Beth McCann has been missing since the 3rd of May of 2007;
25 – There are curricular pieces published on the internet, concerning the first Defendant, referring to him as an honest, structured, socially accepted man, namely for the performance of political posts;
26 – The focus of the media has hit the first Defendant;
27 – The abovementioned curricula (item 25) reveal a man who “studied engineering”, obtained a university degree in juridical and criminal sciences and was a PJ agent/inspector for 27 years;
28 – The first Defendant knows the meaning and the extent of an archiving dispatch within a criminal process;
29 – The first Defendant knows who holds power over the inquiry, who can open or reopen it, and under which circumstances that can be done;
30 - The first Defendant knows what defamation and injury are;
31 - The first Defendant knows what it means not to be at the service of criminal investigation;
32 - The first Defendant has professional experience and is of adult age;
33 - By divulging his thesis about the events of the 3rd of May, 2007, in Praia da Luz, the first Defendant, with the assistance of the three other Defendants, saw his person promoted and earned money.
34 - The first Defendant wished to intervene in local political life.
35 - The Defendants intend to disseminate the book and the DVD all over the world, earning financial, commercial and social profit, deepening the suffering of the two first Applicants and rendering the search for the third Applicant more difficult.
OF THE LAW
From the Applicants’ allegation, it becomes clear that they understand that several of their rights – all within the scope of personality rights – have already been violated by the divulgation of the first Defendant’s thesis concerning the events that are related to the third Applicant’s disappearance in May of 2007. A thesis according to which the third Applicant would have passed away on the 3rd of May of 2007 in the Praia da Luz apartment, and her cadaver concealed by the first and second
After the production of evidence, performed in fulfilment of the Decision, it was established that the book that was authored by the first Defendant [and although after the injunction was interposed] was in the meantime the subject of a Spanish edition in May of 2009, a French one in June of 2009, a German one (also for the Swiss and Austrian markets) in June of 2009, and later on, an Italian and a Dutch one, and the Defendant “Guerra e Paz” also launched an edition in Brazil, facts that allow for the conclusion that the Defendants intend to disseminate the book and the DVD over the world, obtaining financial, commercial and social profit (cfr. answer to article 92).
On the other hand, it resulted demonstrated that the dissemination of those materials (book and DVD) deepens the suffering of the two first Applicants and renders the search for the third Applicant more difficult (cfr. answer to article 92): each time the first Defendant’s thesis is newly divulged, the suffering of the first and second Applicants intensifies – whether through the existence or the announcement of a new edition of the book, or a new divulgation of the video or by the occurrence of interviews – mainly due to the repercussions that such events have on the search for the whereabouts of the third Applicant and due to potentiating the knowledge of said thesis by the fourth and the fifth Applicants.
Thus translates the threat of future lesions or the worsening of those already verified to the Applicants’ personality rights.
The protection of personal integrity in its two dimensions, physical and moral, is consecrated by the Constitution (cfr. article 25, number 1 of the CRP [11]), and it should be articulated with other means for the protection of personal rights, such as those foreseen in number 1 of article 26 of the Constitution, that is, the rights to personal identity, to the development of personality, to civil capacity, to citizenship, to the good name and reputation, to image, to word, to the reservation of intimacy of private and family life, and to legal protection against any form of discrimination, constituting the fundamental seat of the designated general personality right, as well as the direct expression of the basic postulate of human dignity as admitted in article 1 of the Constitution, a basic value and the first reference in the matter of fundamental rights.
The ordinary law, on the other hand, generically names, in article 70 number 1 of the Civil Code, the defence of individuals against illicit threats of offences against their physical and moral personality (from that mention and from the precepts that are subsequent to it, one infers the existence of a certain set of rights that are connected to personality, as the right to image, to the reservation of private intimacy, the right to a good name and reputation), with number 2 foreseeing that the person that has been threatened or offended can request the injunctions that are adequate to the case’s circumstances, with the purpose of avoiding the consummation of the threat or to attenuate the effects of the already committed offence.
On the other hand, number 1 of article 381 of the Civil Process Code, and concerning non specified injunctions, establishes that whenever someone shows a based fear that someone else causes a serious and hardly repairable lesion to his or her right, that parson can request the conservatory or anticipatory injunction that is specifically adequate to ensure the effectiveness of the threatened right.
By handling the preceding juridical considerations with the established facts, the objective fulfilment of the conditions for the establishment of the injunction that is destined to safe keep the Applicants’ rights is verified.
Nevertheless, and just as mentioned in the Appeals Court’s Decision, one must pay attention to an eventual conflict of rights.
In fact, both the writing of the book, and its divulgation and that of the thesis that is defended in it, namely through the DVD and through interviews, configure the exercise of freedom of expression, and as far as the third Defendant is concerned, also that of freedom of the press and the media.
Those rights of the Defendants, as well as those of the Applicants that were noted above and that are at stake, have equal constitutional standing, and therefore it is peacefully understood that when there is a conflict in their exercise by different holders, and because there is no relationship of predominance of one towards the other, one must seek within the circumstances of the specific case, the fair measure of contraction of one of them, or even of both, in order to render the adequate exercise of each one of those rights viable. That solution is contained in article 335 number 1 of the Civil Code.
Therefore, taking into account that the thesis that is presented by the first Defendant, through the adequate means that are placed at his disposal by the other Defendants, raises the suspicion of the involvement of the first and second Applicants in the practice of criminal actions, albeit in a negligent way, among the general public, and that they, having been made arguidos at a given point in time, saw the criminal inquiry archived in relation to them, one has to conclude that it must be the rights of the Defendants that cede to the rights of the Applicants.
On the other hand, the divulgation of the thesis that the third Applicant passed away on the 03/05/2007 raises difficulties for the investigation into what happened and the search for her whereabouts. The contrary hypothesis that is defended by the Applicants, that the third Applicant is still alive, must be taken into account, and if it is verified, then her life and her wellbeing may depend on the search for her whereabouts, and these rights of her must also make those of the Defendants cede.
Therefore, and having reached this point, we conclude that the injunction is to be granted, nevertheless, and as far as the requested measures are concerned, it has to be taken into account that those requested under d), e), f) and, partially, under b) are directed against an undetermined universe of addressees, and can therefore only be granted concerning the Defendants.
As for the compulsory pecuniary sanction, taking into account the financial capacity of the Defendants that are companies (to which the requested injunctions of apprehension of books and DVDs are destined), the profits that have already been obtained through the sale and the divulgation at hand, and taking into account the interests that are in conflict, we see it as adequate under article 829-A of the Civil Code.
DECISION
Under these terms and due to the exposed fundaments, the Court grants the present injunction and, as a consequence, decrees as follows:
a) The prohibition for the Defendants to sell the books and the videos that are still in stores or in 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 new editions of the book or the video, or of other books and/or videos, that defend the same thesis, and that are destined to be sold or published by any means whatsoever in Portugal;
c) The prohibition for the Defendants to cede the editing rights or the authorship rights over the contents of the book or the video, or of other books and other videos about the same theme, for publication anywhere in the world;
d) The prohibition for the Defendants to cite, analyse or comment, verbally or in writing, on parts of the book or the video that defend the thesis of death of the third Applicant or of concealment of her body by the first two Applicants;
e) The prohibition for the Defendants to perform the reproduction or comment, opinion or interview, where said thesis is defended or from where it 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.
Moreover, the Court condemns each one of the Defendant societies to pay a compulsory pecuniary sanction in the amount of 1000 euros for each day that the prohibitions or the order to apprehend the books and the videos are not respected.
The depository of the books and videos, whose collection is ordered, is the lawyer who represents the Applicants.
Expenses by the Applicants to be attended in the main action.
To be registered and notified.
Lisboa, DS
(The Judge of Law, Amélia Puna Loupo)
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[1] This reference to an Appeals Court decision is due to the fact that the first request for an injunction that was filed by the McCann couple and their children, was not granted. An appeal was filed, and the present injunction was granted after intervention by the Appeals Court.
[2] The first Defendant is Gonçalo Amaral.
[3] The three other Defendants are Guerra & Paz, Valentim de Carvalho Filmes and TVI.
[4] The two first Applicants are Kate and Gerry McCann.
[5] The third Applicant is Madeleine McCann.
[6] The Applicants’ witnesses are mentioned here.
[7] The forth and fifth Applicants are Sean and Amelie McCann.
[8] The Brazilian edition does not exist, as was later clarified during a hearing on the 13th of January 2010.
[9] Rádio Televisão Portuguesa
[10] «Maddie The Truth of the Lie – A powerful documentary based on best seller “The Truth of the Lie” by Gonçalo Amaral»
[11] Portuguese Republic’s Constitution
