Page 67
In the said order, it was concluded also that the appellants had neglected, although not recklessly or grossly, the duty of custody of their children, and still that, although it had not been possible to determine if the child was alive or not, it seemed more likely she was dead.
Actually a spokesman for the appellants said on 17/10/07 that they were realistic enough to admit that their daughter was probably dead (n° 75 of the proven facts).
From another angle, it has to be observed that, in the introductory note to the book at stake, the respondent affirms that the book's objective is to restore his good name which, in his understanding, was tarnished in the public sphere, to contribute to the discovery of the material truth and to the achievement of justice (n°23 of the proven facts)
It is clear, however, that the proven facts reveal that the respondent intended, on the one hand, to put in crisis the decision to remove him from the investigation, getting even to the point to suggest there had been a political management of the investigation and, on the other hand, to safeguard the rigour of the work of all the police professionals involved in the investigation until the moment he ceased to coordinate them.
Of all those circumstances does not result, in our view, that underlying the book, the documentary and the interview, exists an defamatory intention against the appellants, i.e an animus injuriandi, but rather an animus informandi and an animus defendendi. Note*
The opinion expressed by the respondent is sufficiently detailed in an intelligible and logical assessment of the facts and elements of evidence gathered in the investigation. Therefore the existence of a mere attack ad hominem to the persons of the appellants is not to be prefigured.
In addition, the disappearance of Madeleine and the subsequent investigation have become subjects of general interest and discussion at national and even international level, which, incidentally, was afforded by the conduct of the appellants themselves (n°s 65 to 71 and 76 to 79 of the proven facts).
Thus, everything points to balancing the interests at stake and following a balancing methodology adapted to the specificity of the case, in the sense of freedom of expression, which in this case requires greater protection, taking into account, also, the European legal context where we are inserted and the influence of the European jurisprudential paradigm of human rights.
Note* animus injuriandi (intention to offend) vs animus informandi (intention to inform) and animus defendendi (intention to defend).