So what's next in the libel trial saga?

[ferryman]

So, in layman's terms - the original trial was about getting the book banned, because it was libellous. That was concluded in Amaral's favour under his right to free speech.
The latest trial, which falls under the McCanns' right to reply,  is for damages as a result of the alleged libel in the book which has been available for the public to purchase.

Have I got that right?

Not quite.

The point at issue in the dispute over the injunction was two provisions of the Portuguese constitution, one that guarantees the right of citizens to a good name; the other, that guarantees the right of citizens to free speech.

There is an obvious conflict, there, resolved (on appeal) in favour of Amaral's right to free speech.

In both those original actions, libel played no part.

[Montclair]

Not quite.

The point at issue in the dispute over the injunction was two provisions of the Portuguese constitution, one that guarantees the right of citizens to a good name; the other, that guarantees the right of citizens to free speech.

There is an obvious conflict, there, resolved (on appeal) in favour of Amaral's right to free speech.

In both those original actions, libel played no part.

No, the appeals court ruled not only in favour of Gonçalo Amaral's right to free speech but also ruled that what he wrote in his book was as valid a thesis as any other and not libellous. Furthermore, the judges ruled that the McCanns personal rights and good name were not damaged.

[ferryman]

No, the appeals court ruled not only in favour of Gonçalo Amaral's right to free speech but also ruled that what he wrote in his book was as valid a thesis as any other and not libellous. Furthermore, the judges ruled that the McCanns personal rights and good name were not damaged.

Thankfully (for the McCanns, who I happen to support) you are wrong.

[Montclair]

The ban was overturned because libel had not been decided...that's what this trial is about

The trial is about whether the McCanns should receive compensation for any damages caused to them personally by the book. The appeals court had already decided that the book was not libellous in 2010 and no lower court can overrule this decision.

[Carana]

A libel can never be proven in the McCann case until it is known what befell Madeleine and who if anyone was responsible.

Murat won his case against CdaM on appeal, though.

[Montclair]

Thankfully (for the McCanns, who I happen to support) you are wrong.

Please explain where I am wrong.

[ferryman]

The trial is about whether the McCanns should receive compensation for any damages caused to them personally by the book. The appeals court had already decided that the book was not libellous in 2010 and no lower court can overrule this decision.

Libel has been either determined or admitted and the purpose of continued court proceedings to establish damage arising from proven and established libel ...

In reply to your latest post, I have already done so ...

[stephen25000]

Libel has been either determined or admitted and the purpose of continued court proceedings to establish damage arising from proven and established libel ...

In reply to your latest post, I have already done so ...

No libel old son.

The crime has yet to be determined.

[ferryman]

No libel old son.

The crime has yet to be determined.

Good grief!

Haven't you yet caught up with the fact that the libel trial is a civil action?

[Alice Purjorick]

No libel old son.

The crime has yet to be determined.

It must be time for someone to say  "ex parte" 

[ferryman]

It must be time for someone to say  "ex parte" 

The appeal that overturned the injunction was ex-parte

There!

[slartibartfast]

It's amazing how many non portuguese are so familiar with portuguese law...

[lordpookles]

Very confusing. Old article from the Guardian:

http://www.theguardian.com/uk/2010/oct/19/madeleine-mccann-book-ban-overturned

[Alice Purjorick]

This is from the McCann Files re the findings of The Court of Appeal.
www.mccannfiles.com/id344.html

All of this is reported in detailed manner in the book that is at stake here, reproducing the contents of some of the case files, which also had an effect on the above mentioned final dispatch that was signed by two Public Ministry Magistrates.

In the book, we do not verify any reference to any facts that are not in that dispatch.

Where the author differs from the Prosecutors who have written the dispatch, is in the logical, police-work-related and investigative interpretation that he does of those facts.

In that aspect, we stand before the exercise of freedom of opinion, which is a domain in which the author is an expert, as he was a criminal investigator for 26 years.

Let us now analyse the juridical focus of the rights that were invoked by the applicants:

As mentioned above, the Court's decision a quo immediately put aside the dangers of damage to the applicants' physical integrity or their treatment in a degrading, cruel or inhumane way.

The following dangers subsist:

1. damage to the reservation of the applicants' private and family life;

2. damage to their right to image and a good name;

3. damage to their right to the guarantees of the penal process, namely the right to a fair investigation and the right to freedom and safety.

Concerning the applicants' reservation of private life, we verify that they themselves have given numerous interviews and intervened in the media, thus giving them [the media] information that would hardly be publicised by any other means: this includes the documentary that was produced by the British TV station "Channel 4", which had the applicants’ cooperation and was widely broadcast in the United Kingdom and later on in Portugal (ref. Nos. 32 to 35 of the aforementioned proven facts); one should pay attention to the fact that the applicants have easy access to the national and international media, having given an interview to North American television talk show "Oprah" hosted by the well-known Oprah Winfrey, which was already broadcast in Portugal, also by SIC, on the 4th of May, 2009, and again on the 12th of May (ref. No. 40 of the same facts).

Concerning this matter, the Civil Code establishes as follows:

Article 80º
(Right to reservation over the intimacy of private life)
1. Everyone must maintain the reservation over someone else's intimacy of private life.
2. The extent of reservation is defined according to the nature of the case and the persons' condition.

Article 81º
(Voluntary limitation of personality rights)
1. All voluntary limitation of the exercise of personality rights is null if it is contrary to the principles of public order.
2. The voluntary limitation, whenever legal, is always revocable, although with the obligation to indemnify any damages that were caused to legitimate expectations of the other party.

We conclude that the applicants voluntarily decided to limit their right to the intimacy of private life, certainly envisaging higher values like the discovery of their daughter Madeleine's whereabouts, but upon voluntarily limiting that right, they opened the doors for other people to give their opinion about the case, in synchrony with what they were saying, but also possibly in contradiction with their directions, yet always within the bounds of a legitimate and constitutionally consecrated right to opinion and freedom of expression of thought.[/b]

We do not see that the right of the book's author, the defendant, can be limited by a right to the reservation of intimacy that suffered voluntary limitations by their holders, the applicants.

In the same way, concerning the applicants' right to image and a good name: upon placing the case in the public square and giving it worldwide notoriety, the applicants opened all doors to all opinions, even those that are adversarial to them.

In any case, we understand that the allegation of facts that are profusely contained in the judicial inquiry and that were even published through an initiative of the Republic's Attorney General’s Office, can in no way be seen as an offence against the right to image and a good name of the subjects in the process.

Finally, concerning the damage to the right to usufruct ['Usufruct' is the legal right to use and derive profit or benefit from property that belongs to another person] from the penal process' guarantees, namely the right to a fair investigation and the right to freedom and safety, we still cannot understand how it is possible for said rights to be offended by the contents of a book that describes facts from the investigation, although it parts from the interpretation that the Public Ministry's Magistrates made of those facts, yet offering based, solidly built and logical interpretations.

We thus reach a point where it seems to be important to stress the following: the indicative facts that led to the applicants' constitution as arguidos within the inquiry were later on not valued by the Public Ministry's Magistrates in order to lead to a criminal accusation, but those very same facts, seen through another prism and with another base, may lead to a different conclusion from that which was attained by those same Magistrates – those are indications that were deemed to be insufficient in terms of evidence in a criminal investigation, but they can be appreciated in a different way, in an interpretation that is legitimate to be published as a literary work, as long as said interpretation does not offend any fundamental rights of anyone involved – and we have written above already why we understand that said interpretation does not offend the applicants' rights.


www.mccannfiles.com/id344.html

http://joana-morais.blogspot.com/2010/10/lisbon-appeals-court-ruling.html

[Alice Purjorick]

It's amazing how many non portuguese are so familiar with portuguese law...

Beware the Jabberwock my son the jaws that bite without err and shun the frumious professional Goo-Glerr