The first part of the translation of the "acordão" of the Tribunal de Relação de Lisboa of 19 October 2010:
Unspecified Injunction
Process number 6.000/2009
Appeal
I – Report
At the judicial circuit of Lisbon
Kate Marie Healey McCann,
Gerald Patrick McCann,
Madeleine Beth McCann,
Sean Michael McCann and
Amelie Eve McCann
Have filed an unspecified injunction against
Gonçalo de Sousa Amaral,
Guerra e Paz, Editores, S.A.,
VC – Valentim de Carvalho – Filmes, Audiovisuais, SA and
TVI – Televisão Independente, SA,
Alleging that the first two applicants are the Mother and Father of the other applicants, that are all underage, being that it is commonly known that little Madeleine disappeared on the 3rd of May, 2007, and her disappearance prompted an extensive police investigation.
The defendant, Gonçalo Amaral, was one of the Judiciary Police (PJ) investigators that was involved in the investigation and later on wrote a book that is titled “Maddie The Truth of the Lie”, in which he defends, inter alia, that there is a serious possibility that little Maddie accidentally died in the apartment where she was staying and that her parents did, in some manner, undertake the concealment of her cadaver.
They conclude by requesting:
1. The prohibition of sale and the order to collect, for destruction, all the books and videos that are still left at points of sale or other deposits or warehouses;
2. The prohibition to perform any new editions of the book or the video, or of any other books and / or videos that defend the same already criticised thesis, and that are destined to be sold or made public by any other means, in Portugal;
3. The prohibition to cede the editorial or author rights of the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;
4. The prohibition to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two Applicants;
5. The prohibition to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;
6. The prohibition to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.
The petition was fully refused as it was understood that the perils of damage had already been consummated.
In an appeal, that decision was revoked by a decision of this Appeals Court, and the production of evidence was demanded.
After evidence was produced before the lower court, a new sentence was issued, which sustained the injunction and decided as follows:
a) The prohibition for the defendants to sell the books and videos that were still available at points of sale or at other deposits or warehouses and the obligation for the defendants to collect them and to deliver them to the depositary that is nominated below;
b) The prohibition for the defendants to perform any new editions of the book or the video, or of any other books and/or videos that defend the same thesis, and that are destined to be sold or made public by any other means in Portugal;
c) The prohibition for the Defendants to cede the editorial or author rights over the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;
d) The prohibition for the Defendants to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two Applicants;
e) The prohibition for the Defendants to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;
f) The prohibition for the Defendants to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.
Furthermore, the Court condemns each one of the Defendant firms to pay a compulsory pecuniary sanction of 1000 euro for each day that they do not obey the prohibitions or the order to apprehend the books and the videos.
After having been notified of that decision, appeals were filed by:
Gonçalo de Sousa Amaral,
Guerra e Paz, Editores, SA,
VC – Valentim de Carvalho – Filmes, Audiovisuais, SA and
TVI – Televisão Independente, SA,
All of them based on the right of freedom of expression of thought that is constitutionally consecrated and furthermore the fact that the statements and facts that were published in the book are the mere reproduction of solid data that is part of the investigation that was started at due time, and that said statements and facts are even part of the investigation’s archiving dispatch that was signed by a Prosecutor of the Republic.
A new sentence was issued, which basically upheld the sentence that had been issued before and that granted the request.
Against that sentence, appeals were filed by the four opponents.
[a summary of the arguments that were presented by the four opponents follows]
II – Fundaments
The following facts were proved:
From the request
1- On the 24th of July, 2008, the first Defendant published in Portugal, under edition of the second Defendant, the book that he is the author of, “Maddie The Truth of the Lie”.
2 – In that book, the first Defendant defends the thesis that:
“1. The child Madeleine McCann died in the Ocean Club Apartment, in Vila da Luz, on the evening of the 3rd of May, 2007;
“2. The simulation of an abduction took place;
“3. Kate Healy and Gerald McCann are suspected of involvement in the concealment of their daughter’s cadaver,
“4. The death may have been the outcome of a tragic accident;
“5. There are indications of neglect regarding the guardianship and security of the children.”
3 – The aforementioned book attained 4 editions until the end of July, 2008, 9 editions until the end of August, 2008, and 12 editions until the end of September, 2008.
4 – Each edition comprised approximately 10.000 copies.
5 – The book is presently sold out at practically all points of sale.
6 – When the book was published, the first Defendant gave interviews to all the media that requested him to do so, namely RTP, and in those interviews he defended the thesis that he presents in the book.
7 – The first Defendant also gave, among others, an interview to “Correio da Manhã” newspaper, which was published in their edition of the 24th of July, 2008, where he defended the thesis that he presents in the book.
8 – At the beginning of the month of May, 2009, the same book was published in France, now under the title “Maddie, L’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 by newspaper “Le Parisien” and its corresponding website.
10 – In those interviews, the first Defendant once more mentioned the theses that he presents in the book.
11 – The book’s French edition is be systematically and profusely published on the internet, at least at:
[a list of websites follows]
12 – Between the date when the Portuguese edition was published, on 24.07.2008, and the date of the book’s French edition, in May 2009, the fourth Defendant broadcast a television programme which was produced by the third Defendant, that reserved to itself the ownership of the corresponding rights.
13 – The first emission of that television programme took place on the 13th of April, 2009.
14 – The second emission of that television contents took place on the 12th of May, 2009.
15 – That programme was broadcast in Portugal at least on those two occasions.
16 – The same programme/video is intrinsically based upon the contents of the book “Maddie The Truth of the Lie”.
[to be completed]
After reading the proved facts, we do now have to put them into juridical context.
Concerning the suitability or unsuitability of the appeals, it is considered that the matter is solved in the dispatch that was written at the lower court, on pages 1.359/1.367, and the appeals are all suitable.
As was written, and well, in the decision that is under analysis, the injunction is a legal instrument that is destined to effectively protect subjective rights or other jurisdictionally relevant interests.
Its practical importance does not result from the capacity to solve conflicts of interest in an autonomous and definitive way, but rather from its usefulness in the anticipation of certain effects of judicial decisions, in the prevention of serious or hardly repairable violation of rights, in the prevention of financial damages or in the preservation of status quo, until the final decision on the case is issued.
[to be completed]
The right to inform is nowadays unanimously accepted as a fundamental demand of democratic societies of pluralist expression; it is consecrated by article 37 of the Republic’s Constitution.
The rights of citizenship, which are the basis of social life, constitute the core of the very personality (physical and moral) of the human being; thus the right to life, to physical and moral integrity, to a good name, to image, to freedom, to the protection of intimacy are consecrated constitutionally (articles 24, 25, 26) and in civil law (articles 70 and 484 of the Civil Code).
Due to the fact that all of these rights are constitutionally protected, in principle none of them raises above the others, and – in its practical exercise – each one of them should cede as strictly necessary and in a proportional way, in order to accommodate the adequate practice of the rest of them.
Necessity, proportionality and adequacy are the fundamental principles for the practical conjugation of the concrete exercise of said rights; therefore, the rules that are to be respected must be set case by case, thus allowing to decide which conflicting rights must be compressed, what limits have to be observed and what dominant rights must be protected.
And it is through a cautious pondering of the rights at hand that we will be able to extract some conclusions concerning this specific case.
The book that was written by the first defendant, Dr. Gonçalo Amaral, presents a thesis that was at one time defended by several participants in the police investigation: that little Madeleine died accidentally and that her parents, here the first applicants, were suspected of concealing the cadaver.
This defendant was the Coordinating Inspector of the investigation into the case of the disappearance, thus being the most qualified police officer who intervened in the investigation until the time when, through a decision from the Judiciary Police’s (PJ) directory, he was removed from that function.
In that role, the defendant was deeply involved in the entire investigation and had the opportunity to formulate all of the possible conclusions about the case, while it was under investigation.
Approximately 5 months later, Dr. Gonçalo Amaral was removed from the investigation through a decision of the PJ’s directory.
As he clarifies several times throughout the book, the author felt the need to write it right away in order to, as he says, “recover my good name, which was publicly dragged through the mud while the institution that I served for 26 years, the Portuguese Judiciary Police, did not allow me to defend myself, nor defended me institutionally. I asked for permission to speak out in that sense, a request that remains unanswered to this day. I fully respected the PJ’s rules, and remained in silence. Nevertheless, said silence was tearing my dignity apart.
Later on, I was removed from the investigation. I then decided that it was time for me to defend myself in a public way. Therefore, I immediately requested my retirement, so I could regain the plenitude of my freedom of expression.”
This is a first point – and one that is not small – that should be registered: the author feels he is the victim of injustice and wants to reestablish the truth, at least his truth or his vision of truth, even more so as he felt that his honour was being diminished and the police force that he owed obedience to did not allow him to reply, as a police officer, to those attacks against his professional pride and his honour as a qualified criminal investigation police officer.
In the book that is at stake here – “Maddie – the Truth of the Lie” – the author presents a vast multiplicity of facts and then offers his interpretation of said facts.
Those facts are all part of the investigation and are exhaustively considered and weighed in the archiving dispatch of the process that is on the DVD that has been appended to this court case (page 441).
In that description, there are main facts and others that are secondary, but which the author attributes value to, based on his experience as a police investigator, an activity that he has performed for 26 years.
