ASSORTED LINKS INDEX

NEWS REPORTS INDEX

* * *
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 Gonçalo 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 Gonçalo 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 'justiça' 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 edição 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.]

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 RELATÓRIO (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.
=========================================================

TRANSLATION BY ASTRO

CONCLUSION – 09-09-2009

In this process of common injunction that is being handled at this court and section under the number 1143/09.0TVLSB, the Court decides to reply to the factual matter that appears in the initial request, and that has been subject to proof in fulfilment of the Appeals Court Decision [article 13, in the factual segment that appears on page 15 of said decision, articles 58 to 67 and 92 of the corrected initial request] [1], as follows:

Article 13: Not proved;

Article 58: Not proved;

Article 59: Proved that curricular pieces concerning the first Defendant [2] are published on the internet, referring to him as an honest, structured, socially accepted man, namely for the performance of political posts;

Article 60: Proved that the media focus hit the first Defendant;

Article 61: Proved;

Article 62: Proved that the first Defendant knows the meaning and the extent of an archiving dispatch within a criminal process;

Article 63: Proved that the first Defendant knows who holds power over the inquiry, who can open or reopen it, and under which circumstances that can be done;

Article 64: Proved that the first Defendant knows what defamation and injury are;

Article 65: Proved that the first Defendant knows what it means not to be at the service of criminal investigation;

Article 66: Proved that the first Defendant has professional experience and is of adult age;

Article 67: Proved that by divulging his thesis about the events of the 3rd of May, 2007, in Praia da Luz, the first Defendant, with the assistance of the three other Defendants [3], saw his person promoted and earned money.

Also proved that the first Defendant wished to intervene in local political life.

Article 92 – Proved that the Defendants intend to disseminate the book and the DVD all over the world, earning financial, commercial and social profit, deepening the suffering of the two first Applicants [4] and rendering the search for the third Applicant [5] more difficult.

**

For the preceding decision concerning the matter of fact, the Court has pondered the documents that have been appended to the process, as well as the depositions from the questioned witnesses [6], in the segments in which they revealed direct knowledge about the facts that they were questioned upon. The Court has also used judicial presumptions, namely in the answers to articles 60 and 62 to 66.

Concerning the depositions of witnesses 1 to 4, it has to be noted that those have been essentially characterised by the transmission of their opinions, deductions and personal convictions. It was nevertheless revealed that they manifested direct knowledge of the increase in difficulties and obstacles to the ongoing private investigation that searches for the third Applicant, which is being promoted by the first and the second Applicants, each time that new editions or the announcement of future editions of the book, interviews with the first Defendant, or divulgations of the DVD take place.

The depositions, especially from the third and fourth witnesses, were equally considered, concerning the direct knowledge that they demonstrated over the intensification of the suffering of the first and second Applicants, each time de first Defendant’s thesis was newly divulged – whether through the existence or the announcement of a new edition of the book, or a new divulgation of the video or by the occurrence of interviews – mainly due to the repercussions that such events have on the search for the whereabouts of the third Applicant and due to potentiating the knowledge of said thesis by the fourth and the fifth Applicants [7].

Concerning the fifth witness, although her knowledge of the facts that she was questioned about comes from a set of investigative tasks that tend to sustain the allegation that is made in this injunction, what is certain is that, together with the documents that have been appended to the process, it was possible to establish that the book in question has already been subject to a Spanish edition in May 2009, a French one in June 2009, a German one (also for the Swiss and Austrian markets) in June 2009, then an Italian and a Dutch one, and Defendant ‘Guerra e Paz’ has also launched an edition in Brazil [8].

This is, in synthesis, the basis for the previous decision concerning the matter of fact.

**

REPORT

The five Applicants move the present injunction against the duly identified Defendants on page 38 [given the fact that the initial request with the corrected numbering, which has been appended on 20/05/2009, is being attended to], alleging, in synthesis, that the first Defendant’s thesis about the events that took place in Praia da Luz in May 2007 – which relate to the disappearance of the third Applicant, which took place at that time -, which have been put into the book that he authored, that was published by the second Defendant, that sustains the video that was produced and marketed by the third Defendant and was broadcast by the fourth Defendant as a television documentary, have already violated several rights of all of the Applicants and cause them fear of future, serious and hardly repairable damage of the following rights:

a) The rights of Madeleine (the third Applicant) to her moral and physical integrity and to a fair and adequate investigation into her disappearance, in the future;

b) The rights of Sean and Amelie (the fourth and fifth Applicants) to their moral and physical integrity and to a fair and adequate investigation into the disappearance of their elder sister, in the future, as well as their right to the reservation of private and family life and to the good name of the family that they belong to, their right to freedom and to security;

c) The rights of Kate and Gerald McCann (the first and second Applicants) to their image, to their good name, to their good reputation and to the preservation of the integrity of their private and family life, their right to freedom and security, the right to their moral integrity, the right not to be treated in a degrading, cruel or inhumane way, the right to enjoy, like any other citizen, the guarantees of the penal process.

On these fundaments, they conclude by requesting the determination of the following measures:

a) The prohibition of sale and the order to seize, for destruction, the books and the videos that are still left at shops or any other deposits or warehouses;

b) The prohibition to execute new editions of the book or the video, or of other books and/or videos, that defend the same already criticised thesis, and that are destined to be sold or divulged by any means, in Portugal;

c) The prohibition to cede the editing rights or the author rights on the contents of the book or the video, or of any other books and videos on the same subject, for publication in any part of the world;

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

e) The prohibition to reproduce any comment, opinion or interview, where said thesis is defended or can be inferred;

f) The prohibition to publish statements, photographs, or any other documents that are allegedly connected to said book and video or said thesis.


According to what was established by the Appeals Court’s Decision and considering what has resulted from the production of evidence during trial, the following FACTS are proved in an indicative way:

1 – On the 24th of July of 2008, the first Defendant launched in Portugal, under edition of the second Defendant that reserved all rights to itself, the book that he has authored, “Maddie A Verdade da Mentira”;

2 – In that book, the first Defendant defends the thesis of death of the third Applicant and the concealment of her cadaver by the first and second Applicants;

3 – Said book attained 4 editions until the end of July of 2008, 9 editions until the end of August of 2008, and 12 editions until the end of September of 2008;

4 – Each edition was of 10.000 copies;

5 – Presently the book is sold out at practically all points of sale;

6 – When said book was published, the first Defendant gave interviews to all of the media that requested him to, namely to RTP [9], and defended the thesis that he presents in the book, in those interviews;

7 – The first Defendant also gave, among others, an interview to newspaper “Correio da Manhã”, which was published on the 24th of July of 2008, in which he defended the thesis that he presents in the book;

8 – At the beginning ot May of 2009, the same book was published in France, now under the title “Maddie, L’Enquête interdite: Les revelations du commissaire portugais chargé de l’enquête”;

9 – The first Defendant gave countless interviews to several media in France, including the one that was published in the newspaper “Le Parisien” and on the matching internet site;

10 – In those interviews, the first Defendant again mentioned the theses that he presents in the book;

11 – The book’s French edition is systematically and profusely published on the internet, at least on:

http://joana-morais.blogspot.com/2009/05/goncalo-amaral-maddie-lenquete.html

hhtp://sosmaddie.dhblogs.be/archive/2009/05/09/Maddie-1-enquete-interdite-en-belgique1.html

http://www.the3arguidos.net/forum/viewtopic.php?f=35&t=31806&sid=abe61a1c34b42a74ad5a2e50f315c20d&start=0

hhtp://twitturly.com/url/a194ef0f54f1985133b2ff092ddcf75d

http://www.bourin.editeur.fr/livre/maddie-1-enquete-interdite-les-revelations-du-commissaire-portugais-charge-de-1-enquete.html

http://www.amazon.fr/Maddie-lenq%C3%AAte-interdite-Amaral-G/dp/2849411256

http://www.decitre.fr/livres/Maddie-l-enquete-enterdite.aspx/9782849411254;

12 – Between the publication of the Portuguese edition, on 24/07/2008, and the publication of the book’s French edition, in May of 2009, the fourth Defendant broadcast a television programme that was produced by the third Defendant, that reserved the possession of the corresponding rights for itself;

13 – The first broadcast of said television programme took place on the 13th of April of 2009;

14 – The second broadcast of this television contents took place on the 12th of May of 2009;

15 – That programme was broadcast in Portugal at least those two times;

16 – That programme/video is intrinsically based on the contents of the book “Maddie A Verdade da Mentira”;

17 – In that video the first Defendant again sustains his thesis, that the third Applicant is no longer alive, that her death took place inside the “Ocean Club” apartment and that the parents, the first and second Applicants, concealed their daughter’s cadaver;

18 – At least two million and two hundred thousand people watched that programme’s first broadcast;

19 – In late April of 2009, the DVD that corresponds to that programme started being sold, with the title and the subtitle «Maddie A Verdade da Mentira – Um poderoso documentário baseado no best seller “A Verdade da Mentira” de Gonçalo Amaral» [10];

20 – 75.000 copies of that DVD were put on sale;

21 – The DVD is publicised, at least, on the third Defendant’s website;

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

23 – In the Criminal Inquiry in which the first and the second Applicants were made arguidos, an archiving dispatch was issued concerning them, as per appended copy, pages 145-173;

24 – Madeleine Beth McCann has been missing since the 3rd of May of 2007;

25 – There are curricular pieces published on the internet, concerning the first Defendant, referring to him as an honest, structured, socially accepted man, namely for the performance of political posts;

26 – The focus of the media has hit the first Defendant;

27 – The abovementioned curricula (item 25) reveal a man who “studied engineering”, obtained a university degree in juridical and criminal sciences and was a PJ agent/inspector for 27 years;

28 – The first Defendant knows the meaning and the extent of an archiving dispatch within a criminal process;

29 – The first Defendant knows who holds power over the inquiry, who can open or reopen it, and under which circumstances that can be done;

30 - The first Defendant knows what defamation and injury are;

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

32 - The first Defendant has professional experience and is of adult age;

33 - By divulging his thesis about the events of the 3rd of May, 2007, in Praia da Luz, the first Defendant, with the assistance of the three other Defendants, saw his person promoted and earned money.

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

35 - The Defendants intend to disseminate the book and the DVD all over the world, earning financial, commercial and social profit, deepening the suffering of the two first Applicants and rendering the search for the third Applicant more difficult.


OF THE LAW

From the Applicants’ allegation, it becomes clear that they understand that several of their rights – all within the scope of personality rights – have already been violated by the divulgation of the first Defendant’s thesis concerning the events that are related to the third Applicant’s disappearance in May of 2007. A thesis according to which the third Applicant would have passed away on the 3rd of May of 2007 in the Praia da Luz apartment, and her cadaver concealed by the first and second

After the production of evidence, performed in fulfilment of the Decision, it was established that the book that was authored by the first Defendant [and although after the injunction was interposed] was in the meantime the subject of a Spanish edition in May of 2009, a French one in June of 2009, a German one (also for the Swiss and Austrian markets) in June of 2009, and later on, an Italian and a Dutch one, and the Defendant “Guerra e Paz” also launched an edition in Brazil, facts that allow for the conclusion that the Defendants intend to disseminate the book and the DVD over the world, obtaining financial, commercial and social profit (cfr. answer to article 92).

On the other hand, it resulted demonstrated that the dissemination of those materials (book and DVD) deepens the suffering of the two first Applicants and renders the search for the third Applicant more difficult (cfr. answer to article 92): each time the first Defendant’s thesis is newly divulged, the suffering of the first and second Applicants intensifies – whether through the existence or the announcement of a new edition of the book, or a new divulgation of the video or by the occurrence of interviews – mainly due to the repercussions that such events have on the search for the whereabouts of the third Applicant and due to potentiating the knowledge of said thesis by the fourth and the fifth Applicants.

Thus translates the threat of future lesions or the worsening of those already verified to the Applicants’ personality rights.

The protection of personal integrity in its two dimensions, physical and moral, is consecrated by the Constitution (cfr. article 25, number 1 of the CRP [11]), and it should be articulated with other means for the protection of personal rights, such as those foreseen in number 1 of article 26 of the Constitution, that is, the rights to personal identity, to the development of personality, to civil capacity, to citizenship, to the good name and reputation, to image, to word, to the reservation of intimacy of private and family life, and to legal protection against any form of discrimination, constituting the fundamental seat of the designated general personality right, as well as the direct expression of the basic postulate of human dignity as admitted in article 1 of the Constitution, a basic value and the first reference in the matter of fundamental rights.

The ordinary law, on the other hand, generically names, in article 70 number 1 of the Civil Code, the defence of individuals against illicit threats of offences against their physical and moral personality (from that mention and from the precepts that are subsequent to it, one infers the existence of a certain set of rights that are connected to personality, as the right to image, to the reservation of private intimacy, the right to a good name and reputation), with number 2 foreseeing that the person that has been threatened or offended can request the injunctions that are adequate to the case’s circumstances, with the purpose of avoiding the consummation of the threat or to attenuate the effects of the already committed offence.

On the other hand, number 1 of article 381 of the Civil Process Code, and concerning non specified injunctions, establishes that whenever someone shows a based fear that someone else causes a serious and hardly repairable lesion to his or her right, that parson can request the conservatory or anticipatory injunction that is specifically adequate to ensure the effectiveness of the threatened right.

By handling the preceding juridical considerations with the established facts, the objective fulfilment of the conditions for the establishment of the injunction that is destined to safe keep the Applicants’ rights is verified.

Nevertheless, and just as mentioned in the Appeals Court’s Decision, one must pay attention to an eventual conflict of rights.

In fact, both the writing of the book, and its divulgation and that of the thesis that is defended in it, namely through the DVD and through interviews, configure the exercise of freedom of expression, and as far as the third Defendant is concerned, also that of freedom of the press and the media.

Those rights of the Defendants, as well as those of the Applicants that were noted above and that are at stake, have equal constitutional standing, and therefore it is peacefully understood that when there is a conflict in their exercise by different holders, and because there is no relationship of predominance of one towards the other, one must seek within the circumstances of the specific case, the fair measure of contraction of one of them, or even of both, in order to render the adequate exercise of each one of those rights viable. That solution is contained in article 335 number 1 of the Civil Code.

Therefore, taking into account that the thesis that is presented by the first Defendant, through the adequate means that are placed at his disposal by the other Defendants, raises the suspicion of the involvement of the first and second Applicants in the practice of criminal actions, albeit in a negligent way, among the general public, and that they, having been made arguidos at a given point in time, saw the criminal inquiry archived in relation to them, one has to conclude that it must be the rights of the Defendants that cede to the rights of the Applicants.

On the other hand, the divulgation of the thesis that the third Applicant passed away on the 03/05/2007 raises difficulties for the investigation into what happened and the search for her whereabouts. The contrary hypothesis that is defended by the Applicants, that the third Applicant is still alive, must be taken into account, and if it is verified, then her life and her wellbeing may depend on the search for her whereabouts, and these rights of her must also make those of the Defendants cede.

Therefore, and having reached this point, we conclude that the injunction is to be granted, nevertheless, and as far as the requested measures are concerned, it has to be taken into account that those requested under d), e), f) and, partially, under b) are directed against an undetermined universe of addressees, and can therefore only be granted concerning the Defendants.

As for the compulsory pecuniary sanction, taking into account the financial capacity of the Defendants that are companies (to which the requested injunctions of apprehension of books and DVDs are destined), the profits that have already been obtained through the sale and the divulgation at hand, and taking into account the interests that are in conflict, we see it as adequate under article 829-A of the Civil Code.


DECISION

Under these terms and due to the exposed fundaments, the Court grants the present injunction and, as a consequence, decrees as follows:

a) The prohibition for the Defendants to sell the books and the videos that are still in stores or in other deposits or warehouses, and the obligation for the Defendants to collect them and to deliver them to the depositary that is nominated below;

b) The prohibition for the Defendants to perform new editions of the book or the video, or of other books and/or videos, that defend the same thesis, and that are destined to be sold or published by any means whatsoever in Portugal;

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

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

e) The prohibition for the Defendants to perform the reproduction or comment, opinion or interview, where said thesis is defended or from where it can be inferred;

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

Moreover, the Court condemns each one of the Defendant societies to pay a compulsory pecuniary sanction in the amount of 1000 euros for each day that the prohibitions or the order to apprehend the books and the videos are not respected.

The depository of the books and videos, whose collection is ordered, is the lawyer who represents the Applicants.


Expenses by the Applicants to be attended in the main action.


To be registered and notified.


Lisboa, DS



(The Judge of Law, Amélia Puna Loupo)



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[1] This reference to an Appeals Court decision is due to the fact that the first request for an injunction that was filed by the McCann couple and their children, was not granted. An appeal was filed, and the present injunction was granted after intervention by the Appeals Court.

[2] The first Defendant is Gonçalo Amaral.

[3] The three other Defendants are Guerra & Paz, Valentim de Carvalho Filmes and TVI.

[4] The two first Applicants are Kate and Gerry McCann.

[5] The third Applicant is Madeleine McCann.

[6] The Applicants’ witnesses are mentioned here.

[7] The forth and fifth Applicants are Sean and Amelie McCann.

[8] The Brazilian edition does not exist, as was later clarified during a hearing on the 13th of January 2010.

[9] Rádio Televisão Portuguesa

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

[11] Portuguese Republic’s Constitution
 

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