The purpose of this site is for information and a record of Gerry McCann's Blog Archives. As most people will appreciate GM deleted all past blogs from the official website. Hopefully this Archive will be helpful to anyone who is interested in Justice for Madeleine Beth McCann. Many Thanks, Pamalam

Note: This site does not belong to the McCanns. It belongs to Pamalam. If you wish to contact the McCanns directly, please use the contact/email details campaign@findmadeleine.com    

Lisbon Appeals Court Ruling,
Decision &
temporary injunction

HOMEPAGE RELATED ARTICLES NEWS REPORTS INDEX TOTL BOOK ENGLISH
DR AMARAL PHOTOS CARTER RUCK LETTER TO WEBHOST AMARAL BOOK PHOTOS DOCUMENTARY 13-04-09
ANNE GUEDES REPORTS ALBYM'S ANALYSIS COURT APPEAL DATES A Verdade da Mentira
 
 

Supreme Court 31 Jan 2017

 
Review Rejected: McCanns lost their appeal. Gonηalo Amaral can get his money back and his assets unfrozen. McCanns cant appeal any more in Portugal?
 

McCann V Amaral: Supreme Court verdict 31 Jan 2017

 

STJ site document: Freedom of expression and honor constitute two fundamental rights

 
 
Decision: Judgement of Lisbon Court of Appeal on request 1454/09 - 19/04/2016
Lisbon Appeals Court Ruling 19 October 2010
Lisbon Civil Court Decision 18 February 2010

McCann libel trial Twitter jondipaolo 12-13-14 January 2010

Civil Court temporary injunction 9th September, 2009

 
Lisbon Appeals Court Ruling 19 Oct 2010

WITH THANKS TO ASTRO FOR TRANSLATION

 
This is the English translation of the full text of the Appellate Court decision that recently overturned the ban on Dr. Goncalo Amaral's book, "Maddie - A Verdade da Mentira", which has been commonly known to English-speaking people as "Maddie - The Truth of The Lie".

The translation is ours, and you will understand that it is still a work in progress, although the relevant part, that is to say the decision itself and the reasoning that supports said decision, are now complete. This text will be updated and concluded as soon as possible. Thank you for your understanding.

The ruling is divided into three parts, with several sub-contents:

I. Report; it contains a summary of the court case so far, with the previous ruling, and the citation of the contents of each defendant's appeal.

II. Legal basis and Reasons; a presentation of proved facts, a brief explanation and comment concerning the purpose and enforcement of injunctions in general, and in this case in particular, followed by the arguments and the reasoning that lead the judges to the final decision.

III. Decision; the Appellate Court Judge's decision.

Thank you for your support; special thanks go out to Caroline and Pia, Ines and others who have/are reviewed/ing the text.
astr
 

PORTUGUESE COURT PAGE 01 TO 10

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]

PORTUGUESE COURT  PAGES 11 TO 20

 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.

 

PORTUGUESE COURT PAGES 21 TO 30

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 www.gerrymccansblogs.co.uk/PJ/TRANSLATIONS.htm, 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 381Ί, 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 387Ί, 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 383Ί, 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 www.dgsi.pt/:

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 37Ί 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 24Ί, 25Ί, 26Ί) and in civil law (articles 70Ί and 484Ί 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.
  •  

    PORTUGUESE COURT PAGES 31 TO 37

     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 80Ί
     

    (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 81Ί
     

    (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 37Ί and 38Ί.
     
     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 660Ί, 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 -

     

    LISBON CIVIL COURT DECISION 18 FEBRUARY 2010

    WITH THANKS TO ALBERT MOISIU FOR TRANSLATION
     
    Introduction
    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:
    http://duartelevypt.files.wordpress.com/2010/02/doc-2a.pdf
    The supplementary hearing document:
    http://duartelevypt.files.wordpress.com/2010/02/doc-1a1.pdf
     

    * * *
    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
    foundation.

    Respondent 2 opposition
    The main thrust of the publisher's opposition to the injunction lay in the fact that former police inspectors had, and continue, to write about police investigations and cases; that information about the "Maddie case" was widespread around the world in books – through various publishing houses – in newspapers and in Internet websites, including international sites on which books may be bought, exchanged and sold; that the Applicants' own website had displayed the same theory as that contained in the book; that his company held authorisation to publish the photographs contained in the book; that there was no contract between his company and the other two Respondent companies with respect to the DVD or video broadcast; that the book had been published for more than a year, and the language variants for many months, such that any capacity they might have had to cause any damage had long since passed; and that through the Fund established by the parents work was currently ongoing to find out what had happened and to determine the whereabouts of the child.

    Finally, it concluded with a request for the temporary injunction to be revoked and the
    impounded books returned.

    Respondent 3 opposition
    Aside from technical issues pertaining to the video itself, the video producer/distributor
    arguments included assertions that neither the book nor the video stated that the
    missing child had been killed in the apartment or that the parents had hidden her body,
    rather that both conveyed that the police officers in the disappearance investigation up to the date of October 2007 had held suspicions that the child had died and that the parents were suspected of being involved in hiding the body of their daughter.
    The arguments continue with explanations that the foundation of those suspicions are

    contained in the official case file, the content of which was digitised and distributed to
    the general media, foreign and domestic, for them to disseminate that information, and
    that the video concludes with the following statement:

    "The mystery persists; the former inspector believes that one day the truth will be
    known. At this time we know only that Madeleine Beth McCann disappeared from Praia
    da Luz on 3 May 2007. She was 3 years old and a happy child."

    They ended with a request for the injunction to be revoked.

    Respondent 4 opposition
    The arguments from TVI were extensive and intensive beginning with an invocation of
    Article 37 (freedom of speech) of The Portuguese Constitution and a statement that the boundaries defined therein had not been exceeded; that it's sole intention in
    broadcasting the video had been to inform the public and to clarify aspects of the case; that it had made no judgement, comment or observation with respect to the theory of the first Respondent nor to that of the Applicants that their daughter was found gone and had been abducted from the bedroom where she had been sleeping with her siblings.

    The full preamble to the TVI screening of the video is included in their submission to
    support their above argument:

    "The program that follows is a documentary based on the book of 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.

    Applicants' rebuttal
    The judge's report proceeds with her summary of the Applicants' rebuttal of the above
    arguments.

    With respect to Goncalo Amaral they make some technical legal points about his right as an author and the content of the contract with VC Filmes, otherwise dismissing the rest as being nothing new.

    With respect to the publisher they argue that the book had been ready for publication
    since April 2008, and, regarding the Internet blogs, they allege that the publishing
    company knew the author of the blog that had appropriated the name of the father.
    They adduced further that, through things observed on the Internet, it was clear that
    that site had nothing to do with the parents.

    On this point they request an official condemnation of the publisher as a 'bad faith
    litigant' and recompense as defined in Civil Process Code (CPC) Article 457.

    [NOTE: For anyone interested in further reading, the 'Notion of Bad Faith' is defined in
    CPC Article 456 and it is interesting to note that the request does not explicitly stipulate which of the conditions in that Article were applicable, in their view, in this instance.]

    The rebuttal of TVI was simply that there was nothing new.

    With VC Filmes they again raised a technicality on cession of rights and raised a further request for a 'bad faith litigant' condemnation and recompense, in this instance being specific in alleging the omission, distortion and confounding facts relevant to the matter in question, citing documents which were available to the judge and parties, but not to us.

    Respondent counter arguments
    The report continues with the Respondent counter-arguments to the Applicants' rebuttal and the 'bad faith' requests:

    VC Filmes responded simply that there can be no possible confusion arising from the use of the universally recognised symbol for copyright, namely '©'.

    The publisher responded than insofar as the blogs were concerned they are authored by the Applicants or by someone with their knowledge and approval given that the
    Applicants had done nothing to prohibit them.

    Supplementary hearing: separate document
    At this point there was a supplementary hearing, possibly a 'side bar' or probably 'in
    chambers', on the above matters.This hearing was recorded in a second document, the essence of which was firstly:

    – a recapitulation of the 35 points of the Applicants' submission to the Court;

    – seven points from Goncalo Amaral's arguments, with the judge concluding that it
    had not been proven that the parents had opposed the official reconstruction;

    – six points from the publisher's arguments, with the judge concluding that it had
    not been proven that the parents had agreed to the publication of the Portuguese
    version and an English translation of Goncalo Amaral's book on an Internet
    website;

    – eighteen points from the VC Filmes' arguments, with the judge concluding that it
    had not been proven that the excess number of [video] DVD copies had been
    destroyed by 'Presslivre' with the agreement of 'VC Multimedia', nor that at the

    date VC Filmes had been notified of the terms of the temporary injunction there
    had been no residual copies of the video in any other repository or warehouse;

    – twelve points from TVI's arguments, there being no reservations expressed by the
    judge on those points.

    [Note that all these points are enumerated in Section II of the main document
    below, so I have not written them out in detail here]

    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
    Internet;

    – Eduardo Jose Campos Damaso, Correio da Manha journalist specialising in the
    area of Justice and Communication, limited himself to making comments about
    other books written about questions relating to Justice.

    The judge continued by giving her assessment on certain points, stating at the outset
    that the Court had seen [had read?] all the documents in the official case file designated Inquerito 201/07.0GSLGS, either on CD or DVD.

    From the [Court's] analysis of the depositions and documents [in the case file], nothing was found that should cause the facts already in the injunction to be altered.

    Concerning point 1 of the injunction [Applicants' allegations], the testimony of the
    'Guerra e Paz' witnesses, along with the contract included among the hearing
    documents, exceed the limit of redaction of the article.

    [I read this as meaning that Court is satisfied that the publisher was fully involved at all stages of the book publication, and not acting merely as a proof-reader/book printer/book distributor in a manner similar to a self-publication/vanity press publication. Therefore, the term 'sob 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
    programme.

    20. 75,000 copies of that DVD have already been disseminated for sale.

    21. The DVD is advertised, at least, on the website of the third Respondent.

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

    23. The criminal investigation in which the first Applicants were made arguidos was
    archived, a copy of which statement is attached [to their original submission to the
    Court].

    24. Madeleine Beth McCann disappeared on 3 May 2007.

    25. On the Internet appears information about the first Respondent that says he is
    honest, upright, socially acceptable, destined for a position in politics.

    26. The first Respondent is a media-aware person.

    27. The information in (25) above states that he is professionally and technically
    trained and qualified in judicial and criminal science, and was a PJ officer/inspector for
    27 years.

    28. He understands the meaning and import of an archival of a criminal case.

    29. He knows who holds authority over an official inquiry, who may open or re-open it
    and under what circumstances.

    30. He knows what is defamation and [legal] injury.

    31. He knows what it means not being in the criminal investigation service.

    32. He has professional expertise and is of adult age.
     

    33. Through his divulging the events of 3 May 2007 in Praia da Luz, with help from
    the other three Respondents, he saw himself promoted [socially] and earned money.

    34. He has intentions to pursue a political career.

    35. The Respondents intend to disseminate the book and the DVD world-wide, gaining
    financially, commercially and socially, which deepens the suffering of the first two
    Applicants and makes more difficult [impedes] the searches for the third Applicant.

    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
    2007.

    2. He resigned from service on 1 July 2008.

    3. At the date he was withdrawn from the case, it was known to the Respondent that
    some investigators had formed the opinion that Madeleine McCann had died in the
    apartment.

    4. The investigative work that the Respondent reports in the book and the
    documentary is contained in the inquiry case file.

    5. The inquiry case file was made available in digitised copy, specifically to the public
    press, national and international, who undertook to disseminate it, granting them
    knowledge of it for public and universal commentary and discussion.

    6. Any person has access to those facts and to the documents of the case file as was
    ascertained, on the Internet, at the distance of a 'click'.

    7. The witness friends of the Applicants did not make themselves available to appear
    in Portugal for a reconstruction of events, as was determined from the procurators' note on pages 4636 to 4638 of Volume XII of the Inquiry.

    8. In terms of the publishing contract between the first and second Respondents, the
    first temporarily ceded to the second the author's ownership rights while the work was a book.

    9. The book was published, through other publishing companies, in several countries
    and languages (besides France) as stated in point 8 of the injunction, namely: in
    Spain(Sept 2008), Denmark (Nov 2008), Italy (Dec 2008), Netherlands (April 2009),
    Germany (June 2009) also being made available for sale in Austria and Switzerland.

    10. An English version, along with a Portuguese version, was in circulation on an
    Internet website.

    11. The first Applicants cited on their own website the theory of the first Respondent.

    12. The newspaper Correio da Manha, on 3 October 2007, published an article entitled
    "Maddie, the diary of a mystery".

    13. Through the Fund created by the parents work is being performed that is
    considered convenient [timely; opportune] to obtain leads about what happened and to determine the whereabouts of the third Applicant.

    14. In the first trimester (quarter; three months) of 2008 VC Filmes learned that the
    first Respondent was writing a book, the publication of which was to occur in the first
    semester (two months) of the same year, described as objective and factual and as
    revealing facts, unknown at the time, of the investigation which he had led into the
    disappearance of Madeleine McCann.
     

    15. VC Filmes made known to the first Respondent it's interest in the audiovisual
    adaptation (both documentary and fiction) of that book.

    16. With him, it agreed the cession and exclusive right to adapt the book as a
    documentary or fiction that could be exploited in various ways.

    17. The author of the book was obliged [obligated] to be the narrator of the
    documentary.

    18. He ceded to VC Filmes all content ownership and rights as author and narrator,
    specifically with respect to the full exploitation of the documentary.

    19. VC Filmes ceded to the fourth Respondent the rights to broadcast the
    documentary on Portuguese television.

    Points 20 through 25 all concern legalities regarding the cession of various rights between various companies.

    26. 75,000 copies were made of the video DVD.

    27. The DVD was sold along with the 24 April 2009 copy of Correio da Manha.

    28. Only a small quantity of the DVD was sold, some 63,369 copies having been
    destroyed by the company "Presslivre".

    29. [Repeating point 5 above] The inquiry case file was made available in digitised
    copy, specifically to the public press, national and international, who undertook to
    disseminate it, granting them knowledge of it for public and universal commentary and
    discussion.

    30. [Repeating point 6 above] Any person has access to those facts and to the
    documents of the case file as was ascertained, on the Internet, at the distance of a
    'click'.

    31. The documentary was put out and subtitled in English by third parties who spread
    it on the Internet without the authorisation and against the will of VC Filmes.

    32. The first two Applicants, in collaboration with British TV Channel 4, also made a
    documentary about the disappearance of the third Applicant which conveyed their
    version of events that happened in Praia da Luz in May 2007.

    33 This work, a 60-minute documentary entitled "Still Missing Madeleine", was the
    object of a preliminary agreement in which Mentorn International granted a licence to
    TVI for the exclusive rights in Portuguese territory between 7 May 2009 and 6 May
    2010.

    34. Negotiations on this agreement began prior to the first broadcast of the
    documentary based on the first Respondent's book, and had been duly recorded in
    writing in the form of a "deal memo" (business memorandum) signed by both parties on
    15 April 2009.

    35. TVI scheduled the broadcast of this documentary in a manner to complement that
    of the first Respondent so as to show to the public the different versions and possible
    explanations of the same events.

    36. On 23 April 2009 TVI was informed by telephone that Mentorn would not comply
    with the above preliminary licence agreement, which [call] was confirmed in writing on 5 May 2009.

    37. The reason given by Mentorn was that the McCann family have given instructions
    that it did not want the programme licensed to TVI.

    38. The documentary that portrays the version of events defended by the Applicants
    was broadcast on 12 May 2009 on [the Portuguese TV] channel SIC, having been aired previously in the UK.


    39. That documentary explains, with the help of private detectives, the version of
    events defended by the Applicants and shows a reconstruction of the night on which
    Madeleine McCann disappeared.

    40. The first Applicants have easy access to national and international media, having
    granted an interview on the North American television show "Oprah" that was aired in
    Portugal, also by SIC, on 4 May 2009 and again on 12 May.

    41. That programme was transmitted to the entire world through satellite and cable
    TV.

    42. In that programme the parents, once again, explained their theory about the
    fateful events on the night of 3 May 2007 and launched once again an appeal to their
    search, revealing new facts about their private investigations.

    43. In the documentary presented by SIC the Applicants reveal at least one more new
    witness, reconstructions and [E-fit] portraits that reinforce the abduction theory.

    [End of section II - Os Factos]

    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
    security.

    The first impression from the theory put out by the Respondents is that it has raised in
    the mind of the public suspicions about the involvement of the parents in criminal
    activity, and conclusions on pages 220-221 of the book 'A Verdade da Mentira' are cited.

    The judge then proceeds to cite several pages from the case file DVD, beginning with
    p4531 and pp4582-4583 of the final police report (pp4526-4583 of Vol XVII) that (she
    comments) was written by a police officer who was not called as a witness in the
    hearing, followed by pp4644-4645; p4646; pp4648-4649, and she goes on to comment
    that despite all the effort expended in the inquiry the State not only could not formulate any accusation against the arguidos, but it concluded that the indications that made them arguidos could not be confirmed or strengthened.

    She goes on to show and state that while many parts of the book are in agreement with the case file, the book goes further by using, in a literary form, privileged information, thereby making it more than a mere repository of the procedural case work.

    From this, and through the video DVD and interviews, she believes that the
    Respondents exercised their freedom of expression and, in the case of the second and
    fourth Respondents, freedom of the press.

    She concludes the sub-section by pondering if there is a conflict between these rights
    (of expression/press) and those of the Applicants, and, if so, which should prevail or at what point may one strike a harmonisation or practical agreement [concordance]
    between them.
     

    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/libel action which gave rise to these injunction hearings] is the appropriate
    place to get to the bottom of all the matters she raised.

    She goes on to acknowledge that it may be argued that the actions of the first
    Respondent are in defence of his good name and the higher purpose of discovering the
    truth and the realisation of justice, but also notes that the situation of the first
    Respondent is identical to all those who exercise similar functions and that public
    scrutiny of the action of justice is not served by 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
    Applicants.

    Both requests were rejected on the basis that there had been no attempt by either
    Respondent to alter the truth or to confound the Court, and there was no procedural
    conduct on the part of the Respondents that met the minimum requirements of any of
    the conditions in CPC 456(2).

    [End of section III – O Direito.]

    Section IV – The Decision
    This section is very short.
    It maintains the injunction and, without prejudice, it reaffirms the wording changes
    determined in sub-section F..
    [End of section IV – O Decisao.]

     
    * * *
    There are several minor observations that I am sure will surface to be discussed in forums, but I have two personal observations on one point that I consider to be quite important:

    1 – With one possible exception, I believe the Lady judge maintained her focus on the matter before her and her independence of mind.

    The exception, probably due to my spending extensive, some might say excessive, periods of time around the world on various Internet forums, as well as in social debates, pertains to her statement in sub-section E) that "… the rules of common experience appear to indicate that …"(assuming no translation error on my part.)

    There is no doubt in my mind that the good lady, by dint of her professional position and the path she would likely have had to take to attain the same, will have more than a passing familiarity with the frailty of the human condition at all levels of Portuguese society. I have to wonder, however, if that, and that alone, constituted her appreciation
    of "the rules of common experience" given that we have seen this expression previously at page 4647 of the case file in the final conclusion penned by the two prosecutors.

    2 – In the same sub-section, read together with the comment regarding the Applicants' allegation 35 made in the supplementary hearing document at the end of Section I,if the paragraphs from TVI in sub-section E) were the only attempt to quash allegation 35, or other attempts were weaker still, then that oversight on the part of the Respondent defence teams may be singled out as a likely key reason for their failure to prevail.

    As I recall, the first objective in a debate is to demolish an opponent's argument before building one's own. Clearly this was not done with respect to allegation 35 as evidenced by the judge's simple understatement that "… the witness testimony was not sufficiently
    convincing …" and her dismissal of the TVI submission "because the rules of common experience appear to indicate that ...".
     
    DOCUMENTS BELOW ATTACHED TO CR LETTER SENT TO GMBs WEBHOST 09 SEP 2009
    Alby's Analysis of the Court Document
    Portuguese court documents at bottom of page

    The attachment is not the full transcript of the court hearing, but appears to be the judge's summation of what was presented to her (allegations by the five plaintiffs - the five members of the McCann family) for a 'cautionary proceeding' against four respondents (the author (GA), the publisher, the video maker, and the TV station) for violation of various personal rights of the plaintiffs due to the publication of the book (A Verdade da Mentira) and the video based upon it.

    It appears to contain a recapitulation of the essential parts of what was presented to her, a legal analysis and a decision based upon that analysis, but the starting point is the judge's opinion on various 'matters of fact' that she was asked to consider.

    Most of those points pertained to facts about the author and other respondents, but the critical judgement is that, in the hearing, based on documents submitted and the depositions of five unidentified witnesses - I do not know if they were actually present in court, but it is possible - it was proved that the respondents intended to broadcast the book and the DVD world-wide for financial, commercial and social gain, [thereby] deepening the suffering of the parents and making more difficult the search for the missing child.

    That appears to be the nub of the matter before the court.
    The essence of the five witness depositions is given as:

    - witnesses 1 to 4 expressed personal opinions, deductions and convictions [I read this as meaning that what they had to say could not be proven by empirical measurement];

    - but they did reveal first-hand knowledge of the growth in difficulties and obstacles to the search for the missing child that arose from each new edition of the book, news of a new edition, interviews by the author, and broadcast of the DVD;

    - the 3rd and 4th witness depositions, in particular, demonstrated the intensification of the suffering of the parents that arose from each new promotion of the proposition [thesis] of the author - whether through the book, DVD or interviews - and its repercussions on the search, and the potential for the twins to gain knowledge of it.

    - the 5th witness essentially provided evidence on the extent of the publications around the world.
    ====
    The above is my understanding of the CONCLUSION in the first five pages
    The section headed RELATORIO (Report) on pages 6 through 11 appears to reflect the
    allegations, requests and matters of fact presented by the five plaintiffs.

    The section headed 'DE DIREITO' on pages 11 through 15 appears to be the judge's legal analysis, albeit that some parts may have come directly from the legal argument presented by plaintiff counsel, but that would not be unusual if such argument was pertinent and well-phrased.

    In the analysis, the conflict between fundamental rights of freedom of expression and freedom of the press on the one hand versus the personal rights of the plaintiffs on the other was determined in favour of the plaintiffs [the McCanns]. That, to me, is the essential judgement.

    The crux appears to be that the judge had to [had no option other than to ] conclude that the proposition by the author (and promoted by the other respondents) that the parents had been involved in criminal acts, even negligence, had not been proved in the inquiry that is now archived, and so, for purposes of this particular hearing, the fundamental legal rights of the respondents have to give way to the fundamental legal rights of the plaintiffs.

    ====
    That brings us to the DECISION on page 15.
    As we get to the DECISION there are two important things to note:
     

    - this hearing is NOTHING to do with defamation or libel - which is the Principal Action to be heard at some date in the future. It limited itself to deciding which of two sets of fundamental rights in Portuguese Law should hold sway in the specific circumstance presented, which circumstance was that each rendition of the proposition of a dead child and the hiding of her body impeded the search for a live child, and this impediment caused additional suffering to the parents who are behind the conduct of that search.
     

    The request was made solely to stop further renditions of that proposition in its various forms.

    - the actions requested by the plaintiffs were not granted in the manner they wanted; they were all modified in execution.

    The requested actions are shown as a) through f) on page 7, while the DECISION is shown, in the same order and lettering, on pages 15 and 16.

    a) requested the unqualified prohibition of the sale of the book and video and that all
    remaining copies held in book stores and warehouses be collected and destroyed.

    The DECISION modified this to the RESPONDENTS being prohibited from selling the remaining [unsold] books and videos held in book stores and warehouses, and that those [unsold] copies be collected and delivered to a depository [i.e. for safe-keeping, not for destruction];

    b) requested the unqualified prohibition of new editions of the book and of the video, or other books and/or videos, that defend the proposition [of illegal acts on the part of the parents], and that are aimed at distribution/publication in Portugal;

    The DECISION modified this to the RESPONDENTS being prohibited from doing those
    requested things;

    c) requested the unqualified prohibition of transferring rights of publication and of authorship over the contents of the book or of the video, or of other books and videos of the same proposition, for publication anywhere in the world;

    The DECISION modified this to the RESPONDENTS being prohibited from transferring such rights [that they hold];

    d) requested the unqualified prohibition of citation, analysis or express commentary, verbal or written, of parts of the book or of the video that defend the proposition of the death of the [missing child] or of the hiding of her body, by [the parents].

    The DECISION modified this to the RESPONDENTS being prohibited from the citation, analysis or express commentary, verbal or written, of parts of the book or of the video that defend the proposition of the death of the [missing child] or of the hiding of her body by [the parents].
    NOTE: there is a comma omitted in the DECISION after the word 'body'(corpo), that causes the death to be distinguishable [separable] from the hiding of the body by the parents

    e) requested the unqualified prohibition of the reproduction or commentary, opinion or
    interview in which such proposition is defended or may be inferred.

    The DECISION modified this to the RESPONDENTS being prohibited from such actions;

    f) requested the unqualified prohibition of the publication of declarations, photographs, or other documents allegedly connected with such book and video or such proposition.

    The DECISION modified this to the RESPONDENTS being prohibited from such actions.

    =====
    In ALL respects, therefore, the RESPONDENTS are prohibited from doing certain things, but in the DECISION there is no attempt to prohibit other people from doing those things - provided, of course, that they do them within the scope of their own legal rights (and duties).

    I would suggest, however, that any argument, opinion or comment as to the possible death of the missing child, or to the hiding of the body under such a circumstance, does not use either the book or the video as a foundation; rather, it should look to the content of the official case file.I reiterate that, in my understanding of it, this is not a judgement on defamation or libel, and my understanding of this is reinforced by the penultimate line
     

    (the last sentence on page 16)
    which states that costs are borne by the plaintiffs pending the principal action, i.e. the principal action - namely on the question of defamation and libel - is yet to come.
    There is no pronouncement by the judge on the libellous-ness or defamatory-ness of the book or of the video.

    Finally on page 16, the depository for the unsold copies of the books and videos was
    nominated as being the counsel for the plaintiffs. I do not see any reference to ANY rights - including those of publishing and/or authorship -
    being transferred to that person, nor to any other person, as part of this decision. All such rights, therefore, would remain vested in the holders thereof at the time of this judgement. If this were not the case then request/decision c) above would be totally redundant.
    =========================================================

     
    English word for word translation below.

    TRANSLATION BY ASTRO

     
    This is a translation of the text of the Civil Court ruling that granted the temporary injunction on Goncalo 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 Manha", 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'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 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 documentαrio baseado no best seller "A Verdade da Mentira" de Goncalo 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, Amelia Puna Loupo)
    ------------------------------------------------------------------------------

    [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 Goncalo 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] Radio Televisao Portuguesa

    [10] «Maddie The Truth of the Lie – A powerful documentary based on best seller "The Truth of the Lie" by Goncalo Amaral»

    [11] Portuguese Republic's Constitution

     
    Note: The document was made available by Carter Ruck, the McCanns lawyers, as an attachment to a letter that was sent to several sites and blogs who have published excerpts of Goncalo Amaral book 'Maddie, The Truth of the Lie', in an attempt to close or threat them with a lawsuit. Our copy was downloaded from wikileaks.
     
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