The McCann v Gonçalo Amaral libel trial as it happens.

[Mr Gray]

This is US libel law, which I think Portuguese libel law pretty closely follows:

Abstract:     
When the United States of America declared its independence from the Kingdom of Great Britain on July 4, 1776, the fledgling country looked to distance itself from certain practices of the English Crown, particularly by rejecting a monarchical system. Problematically for this endeavor, though, the English common law tradition had been widely respected in the colonies. So, among the first legislative acts taken by many of the newly independent states was to adopt the already established, predictable, and structured body of English common law by way of a “reception statute,” which gave legal effect to the existing laws to the extent that they had not been rejected by the new government.The Treaty of Paris was signed on September 3, 1783, marking the end of the American Revolutionary War, with the United States of America officially and formally gaining its sovereignty and independence from Great Britain. Despite this separation, the legal traditions of the two countries remain very similar to this day. However, with respect to the common law of defamation, U.S. laws have evolved on a drastically different path.

In recent years, England’s centuries-old (and arguably antiquated) libel statute has caused significant hardship for those trying to exercise their right to free speech because of an increase in “libel tourism” — the practice of international forum shopping for defamation cases. Under English law, a libel defendant is guilty until proven innocent. This presumption has resulted in a disproportionate number of libel cases both from British citizens and “libel tourists” who sue their critics in London. Much of American law is derived from the English common law tradition. One primary subject upon which the laws of England and the United States markedly diverge is defamation and, most interestingly, the burden of proof in such cases. The [current] amendments to [England's] defamation statute include defenses for truth, for matters of public interest, for “honest opinion,” and for privilege. The reformers’ efforts, however, are lacking as they have rejected amending the most obvious and troublesome cause of libel tourism — the “burden of proof” that rests on the defendant in libel cases in England.

Number of Pages in PDF File: 14

Keywords: Defamation, Libel, United Kingdom, common law, reputation, burden of proof, slander, plaintiff, defendant, Reynolds Defense

 Sorry ferryman but you say "I think"...does anyone know the facts

[Mr Gray]

American libel law and libel per se...

Defamation per se[edit]

All states except Arizona, Arkansas, Missouri, and Tennessee recognize that some categories of false statements are so innately harmful that they are considered to be defamatory per se. In the common law tradition, damages for such false statements are presumed and do not have to be proven.

Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:[7]
Allegations or imputations "injurious to another in their trade, business, or profession"
Allegations or imputations "of loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness)
Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)
Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)[8][9


So it looks as though the book would be libellous in the US

[slartibartfast]

This is US libel law, which I think Portuguese libel law pretty closely follows:

Abstract:     
When the United States of America declared its independence from the Kingdom of Great Britain on July 4, 1776, the fledgling country looked to distance itself from certain practices of the English Crown, particularly by rejecting a monarchical system. Problematically for this endeavor, though, the English common law tradition had been widely respected in the colonies. So, among the first legislative acts taken by many of the newly independent states was to adopt the already established, predictable, and structured body of English common law by way of a “reception statute,” which gave legal effect to the existing laws to the extent that they had not been rejected by the new government.The Treaty of Paris was signed on September 3, 1783, marking the end of the American Revolutionary War, with the United States of America officially and formally gaining its sovereignty and independence from Great Britain. Despite this separation, the legal traditions of the two countries remain very similar to this day. However, with respect to the common law of defamation, U.S. laws have evolved on a drastically different path.

In recent years, England’s centuries-old (and arguably antiquated) libel statute has caused significant hardship for those trying to exercise their right to free speech because of an increase in “libel tourism” — the practice of international forum shopping for defamation cases. Under English law, a libel defendant is guilty until proven innocent. This presumption has resulted in a disproportionate number of libel cases both from British citizens and “libel tourists” who sue their critics in London. Much of American law is derived from the English common law tradition. One primary subject upon which the laws of England and the United States markedly diverge is defamation and, most interestingly, the burden of proof in such cases. The [current] amendments to [England's] defamation statute include defenses for truth, for matters of public interest, for “honest opinion,” and for privilege. The reformers’ efforts, however, are lacking as they have rejected amending the most obvious and troublesome cause of libel tourism — the “burden of proof” that rests on the defendant in libel cases in England.

Number of Pages in PDF File: 14

Keywords: Defamation, Libel, United Kingdom, common law, reputation, burden of proof, slander, plaintiff, defendant, Reynolds Defense

Thank you, it was the UK "Honest Opinion" defence I had forgot about.

[Mr Gray]

looks like the judge will just be assessing the damages

[ferryman]

jean-Pierre would certainly be able to give us the answer, and I know Carana is pretty good at locating primary sources for these types of discussion.

Only trouble with Carana is that she occasionally overlooks that we aren't all as linguistically gifted as her.

But she finds some good stuff.

[Redblossom]

jean-Pierre would certainly be able to give us the answer, and I know Carana is pretty good at locating primary sources for these types of discussion.

Only trouble with Carana is that she occasionally overlooks that we aren't all as linguistically gifted as her.

But she finds some good stuff.

If jean pierre had any inklinkg on anything he wiuod pst but he kurks here for months and doesnt do so lol

As for carana, well, im sure she is much in the dark as you are ferryman re the so called libel trial

[Victoria]

It's worth having a look on the ECHR site regarding Portugal. A lot of cases have ended up there in the last ten years or so in which the ECHR has found that freedom of expression has been violated by the Portuguese courts as a result of libel verdicts (convictions and civil verdicts) being made against defendants. Some of the defendants are quite high profile.

It seems clear that Portugal's courts are quite happy to find against defendants who have made false allegations of criminal activity. This case certainly won't be setting any precedents. The idea that freedom of expression is valued above all else is a false one. If anything, the balance seems to be the other way.

[slartibartfast]

Thank you, it was the UK "Honest Opinion" defence I had forgot about.

http://www.legislation.gov.uk/ukpga/2013/26/section/3/enacted

[ferryman]

American libel law and libel per se...

Defamation per se[edit]

All states except Arizona, Arkansas, Missouri, and Tennessee recognize that some categories of false statements are so innately harmful that they are considered to be defamatory per se. In the common law tradition, damages for such false statements are presumed and do not have to be proven.

Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:[7]
Allegations or imputations "injurious to another in their trade, business, or profession"
Allegations or imputations "of loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness)
Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)
Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)[8][9

So it looks as though the book would be libellous in the US

OK, yes, that's interesting.

And Robert Murat didn't have to disprove the allegations against him by Correia de Manaha (which he couldn't, by definition).

[Redblossom]

It's worth having a look on the ECHR site regarding Portugal. A lot of cases have ended up there in the last ten years or so in which the ECHR has found that freedom of expression has been violated by the Portuguese courts as a result of libel verdicts (convictions and civil verdicts) being made against defendants. Some of the defendants are quite high profile.

It seems clear that Portugal's courts are quite happy to find against defendants who have made false allegations of criminal activity. This case certainly won't be setting any precedents. The idea that freedom of expression is valued above all else is a false one. If anything, the balance seems to be the other way.

Read the appellant court decision...sigh......,.rights and freedoms were weighed up......and a decision made....no libel occurred and that is exactly what the judge will allude to next week....and the mccanns might get 20 p not the million they covet?..greedy gits

[Sherlock Holmes]

Common Law (English Law, and the US Law which is founded on it) is one thing.

The Scottish legal system and those of most of the rest of the European continent are more closely rooted in Roman Law and are very different to English / US systems in many respects.

There is another thread on this forum IIRC where we discussed who has to prove what as regards this trial. I am looking for it just now....

[ferryman]

If jean pierre had any inklinkg on anything he wiuod pst but he kurks here for months and doesnt do so lol

As for carana, well, im sure she is much in the dark as you are ferryman re the so called libel trial

Keep dreaming.

[Redblossom]

Keep dreaming.

We shall see who wakes up from a nightmare..or rather goes back into one....wont be me LOL....or amaral.....see you then

you see? Riding a tiger has risks...it WILL bite and eat you......sad but true..

[John]

That is my understanding of the basis of Portuguese civil libel -- the reverse of the position in English libel law -- that the onus is on the party bringing an action to prove untrue statements they consider to be libel.

That is correct ferryman, in Portugal the onus is on the complainant to prove that the defender libelled them.  From everything I have read about the libel case I don't believe they have succeeded.  Amaral claimed in his book that they disposed of Madeline's body following some sort of accident and that they invented an abduction scenario to cover this up.  I cannot see how they could ever prove that he was wrong while Madeleine remains missing.

I believe they have been badly advised but that in itself is nothing new.


In Portugal as in the UK defamation is broadly defined as a statement that gives a false, damaging impression of someone to others. In verbal form it is called slander; in written form it is libel.

In Britain litigants who bring false actions for libel are ordered to pay the other side’s legal costs and expenses, and if found to have lied are prosecuted for perjury and given a jail sentence. No such consequences hang in the balance in Portugal.

There are few deterrents to discourage spurious claims. Hence, libel actions are used as a highly effective intimidatory and persecutory weapon to silence critics, whistle-blowers and consumers alike, leaving the hapless individual who has spoken out with a European Criminal Record and the claimant with a profit! A win-win situation for any malicious litigant.

Unlike in Britain, where it is considered essential that libel cases be determined by a jury, and thus it remains the only civil case still to be decided by twelve members of the public, in Portugal the decision rests at 1st instance with one judge.

In Portugal, criminal libel proceedings can be initiated on the flimsy and totally subjective argument that “one’s honour has been offended”, regardless of the legitimacy of the criticism or the veracity of the statement, and the Portuguese version of Article 10 of the Convention has substituted the word “reputation” for the term “honour.”

[John]

Libel Trial - Lisbon Court rejects McCann request!

A request by Madeleine McCann's parents to give evidence at a Portuguese libel trial over a book by a former local police chief has been rejected, according to a family source.




Kate and Gerry McCann are suing Goncalo Amaral over claims he made in The Truth of the Lie, which they say damaged the hunt for their missing daughter and greatly added to their anguish.

The McCanns are also taking legal action against his publisher and the makers of a documentary based on the book.

They had wanted to testify in the court case, which is taking place in Lisbon.  But a family source said permission had been refused ahead of the next hearing date, which is on Tuesday.

The couple are said to be disappointed by the decision, and their lawyer Isabel Duarte is likely to appeal against the judge's decision.

An application by Mr Amaral to give evidence is also understood to have been turned down.

Mr McCann's sister Trish Cameron told the court last October that the family's pain over Madeleine's disappearance was "multiplied 100 times" by the book, while the trial previously heard how Mrs McCann had considered suicide in the aftermath of its publication in 2008.


www.news.sky.com/story/1190033/madeleine-mccann-parents-in-court-setback