Civil libel laws in Portugal vs England. Some clarity?

[Benice]

This is the definition of libel (in the UK) from Carter Ruck

Quote
Determining the meaning of words gives rise to a great degree of uncertainty in a libel action. It is not only the superficial meaning that may be defamatory but also any 'hidden' meaning which can be inferred. There are three levels of meaning to be aware of:

##inference, in other words a meaning that can be read between the lines without any specialist knowledge; and

##innuendo, a meaning which can be attributed to the words by readers who have a specialist knowledge.

The onus is on the claimant to show the facts giving rise to the innuendo and that these facts are known to the readers. For example, to say that a person eats meat is not defamatory on its face; if, however, some readers know that the person professes to be a committed vegetarian, the statement may be considered defamatory, suggesting he is hypocritical or dishonest.
 
 The words must be put in their full context, including headings and captions to any photographs.
 For the purpose of deciding whether words are defamatory, the intention of the author is irrelevant. All that matters is the impression which the words give to readers.
End quote

Apart from :-   'the onus is on the claimant etc'  law -  which IIRC  is different in PT - then if the other descriptions of libel apply in PT Libel law  - then there is no doubt IMO that the book is libellous.

19

[ferryman]

This is the definition of libel (in the UK) from Carter Ruck

Quote
Determining the meaning of words gives rise to a great degree of uncertainty in a libel action. It is not only the superficial meaning that may be defamatory but also any 'hidden' meaning which can be inferred. There are three levels of meaning to be aware of:

##inference, in other words a meaning that can be read between the lines without any specialist knowledge; and

##innuendo, a meaning which can be attributed to the words by readers who have a specialist knowledge.

The onus is on the claimant to show the facts giving rise to the innuendo and that these facts are known to the readers. For example, to say that a person eats meat is not defamatory on its face; if, however, some readers know that the person professes to be a committed vegetarian, the statement may be considered defamatory, suggesting he is hypocritical or dishonest.
 
 The words must be put in their full context, including headings and captions to any photographs.
 For the purpose of deciding whether words are defamatory, the intention of the author is irrelevant. All that matters is the impression which the words give to readers.
End quote

Apart from :-   'the onus is on the claimant etc'  law -  which IIRC  is different in PT - then if the other descriptions of libel apply in PT Libel law  - then there is no doubt IMO that the book is libellous.



 

Interesting definition; I don't know how applicable it is to Portuguese libel.

For example, in Amaral's book he says something to the effect that in recent years there has been a drug called calpol-night.

Whilst (at the time he wrote it) that was literally true, and whilst Amaral stopped (just) short of saying Madeleine was given it, that is the impression far too many people formed, and Joana Morais in particular wrote a vicious and libellous blog on the subject.

Certainly by UK libel law, that reference (in Amaral's book) would be libel.

I really don't know whether the same would be true in Portugal

Here is what Amaral says about calpol-night:

MADELEINE SLEEPS BADLY
One of the police officers who went to the McCanns’ home in England, reported that a medical monitoring chart for Madeleine was posted in the kitchen. This referred to her sleep problems and made clear that she was waking several times in the night. The paternal grandfather stated that Kate gave the little girl – and also the twins – Calpol, a medication designed to facilitate falling asleep. That seems to be a common practice in Great Britain; they even talk about a “Calpol generation.” In recent years, the possible presence of an antihistamine with sedative effects in Calpol has aroused great controversy. Recently, the same laboratory put Calpol Night on the market, whose ingredients clearly list that it contains an antihistamine.

[slartibartfast]

Interesting definition; I don't know how applicable it is to Portuguese libel.

For example, in Amaral's book he says something to the effect that in recent years there has been a drug called calpol-night.

Whilst (at the time he wrote it) that was literally true, and whilst Amaral stopped (just) short of saying Madeleine was given it, that is the impression far too many people formed, and Joana Morais in particular wrote a vicious and libellous blog on the subject.

Certainly by UK libel law, that reference (in Amaral's book) would be libel.

I really don't know whether the same would be true in Portugal

If someone wrote the police investigation believed Colin Stagg had murdered Rachel Nickell, would that be libel?

[ferryman]

If someone wrote the police investigation believed Colin Stagg had murdered Rachel Nickell, would that be libel?

So long it is also made clear that Robert Napper was convicted of that crime, and Colin Stagg was acquitted at his trial, no.

But omit those facts, and then, yes.

[slartibartfast]

So long it is also made clear that Robert Napper was convicted of that crime, and Colin Stagg was acquitted at his trial, no.

But omit those facts, and then, yes.

So you now believe it is libellous to state facts.

[ferryman]

So you now believe it is libellous to start facts.

It's not a question of what I believe; it's a question of what English law states.

If there is a hidden inference or innuendo that lowers reputation and also is untrue (or, UK law, not proven true) that is libel.

[stephen25000]

It's not a question of what I believe; it's a question of what English law states.

If there is a hidden inference or innuendo that lowers reputation and also is untrue (or, UK law, not proven true) that is libel.

It's not abut English Law ferryman.

This is all about Portuguese Law.

and no bloody Carter Ruck to protect them.

[ferryman]

It's not abut English Law ferryman.

This is all about Portuguese Law.

and no bloody Carter Ruck to protect them.

I think you might find my own post reflects that in Portugal, Portuguese law is what counts.

I can only state certainly the position under English law.

[stephen25000]

I think you might find my own post reflects that in Portugal, Portuguese law is what counts.

I can only state certainly the position under English law.

English Law is irrelevant in this case.

[Carana]

PT law on defamation seems quite different to English law.

There are a lot of question marks for me.

- "Defamation" (as a term) is only mentioned in the penal code - and this is a civil case. It remains to be seen whether the principles of defamation and the accompanying legal defences in the penal code will be taken into account or not. The civil code covers the concept, but in a different way.

It's possible that all of the legal principles deemed to be relevant may be taken into consideration, however that doesn't seem to be clear yet.

- Normally, the onus is on the plaintiff in a civil case (whatever the nature of the complaint), but this doesn't apply if a legal presumption overrides it. It did in the Murat case, but he was suing a newspaper (journalist and editor) so press laws applied. Even so, it was only on appeal that this legal presumption was validated, IIRC. Curiously, it didn't reverse the onus (AFAIK), simply, he didn't have to prove that the allegations were false.

In his case, the issue wasn't just about unproven defamatory allegations: it also concerned the invasion of privacy through, inter alia, publishing photos of him without his consent and the fact that he had never sought to be in the public eye.

One of the legal issues was that CdaM was not the only media outlet involved in these activities and therefore shouldn't have had to bear sole responsibility for any damage. However, he still had to present the damage caused and somehow justify the amount sought as a remedy - which is pretty hard to do, bearing in mind that the civil code appears to be geared towards the more concrete type of case in which you have to prove who broke your window and how much it cost to replace.

[Carana]

From a Europa legal doc. (Note: it covers both Civil and Penal codes, and it's not always clear which articles belong to which code, and laws may have been amended since).


PORTUGAL 74
1. Autonomous Rules
The Portuguese Constitution considers personal rights as basic offences. The right to life, to the
integrity of the person, to personal identity and to personal development, the right to defend
one’s reputation, the right to one’s own image, and the right to privacy are all rights protected in
the Constitution.

The Civil Code dedicates a special section to personal rights.

Defamation
Civil Code
Article 483 of the Civil Code imposes civil liability on the authors of illicit facts. If a person
violates someone else’s rights or any legal rule that protects the interests of others with
prejudicial intention or negligently illicitly is obliged to compensate the harmed person for the
damage caused. Article 484 of the Civil Code also foresees liability for an offence against
somebody else’s reputation or good name.

Penal Code Article 180 of the Penal Code stipulates a penalty for defamation of up to six
months of imprisonment (no minimum limit) or of a fine of up to 240 days (no minimum limit).

Defamation is defined as a judgment about someone or the imputation to a person of a fact that
is offensive of her honor or consideration when the perpetrator is addressing a third party.
Suspicion and the reproduction of one offensive imputation or judgment are also considered
defamation.

The aforementioned conduct shall not, however, be punished when the imputation is made in
order to fulfill legitimate interests and the author proofs the veracity of such imputation or if he
has a serious basis to believe, in good faith, this imputation to be truthful (180 nr 2). Is the
assertion however related to a fact concerning the intimacy of private and family life, legitimate
interest and truth are not considered adequate defenses, unless the defendant made the assertion
in the exercise of a right, in the accomplishment of a duty imposed by law or legitimate order of
authority or with the consent of the envisaged person (Article 180 nr 3 conjugated with Article
31 al. b) c) and d)).

Legal provisions concerning defamation are established under the assumption that the author
who addresses a third party with a conscientious intention to harm, imputes facts or suspicions
to another person with prejudice of her honor or consideration. The author can claim good faith
as a defense, except in those cases where he did not accomplish the information duty about the
truth of the imputation imposed by the circumstances (Article 180 nr 4).

Article 184 in connection with Article 132 nr 2 j of the Penal Code, establishes that the penalty
may be increased to the double of its maximum and minimum limits whenever the victim is a
member of a body that exercises sovereign power, of the State’s Council, Minister of the
republic, magistrate, member of an organ of the government of one of the Autonomous Regions,
(footnote: 74 Created by in collaboration with Magda Cocco and Vasco Marques Correia, with particular reference to
the document on defamation and press media created by the CDMC Secretariat of the European Council..
CDMC (2006)007.)


Justice Purveyor, civil governor, member of an organ of the local autarchies or of an organ or
service of public authority, commander of a public force, member of a court’s jury, witness,
lawyer, agent of security forces or security services, public officer civil or military, public
forces agent or a citizen in charged of public service, teacher or examiner or a minister of
religious cult, and the claim relates to the victim, being in the exercise of his/her functions or the
offence is made because of them. The same applies if the author is a public officer and acts with
serious abuse of authority (Article 184 coordinated with Article 132 nr 2 j).

Article 183, nr 1 states that if the defamation is committed through means or in circumstances
that facilitate its public diffusion or when the defamation is about the imputation of facts, and it
is determined that the author knew that those facts where not true, the penalty shall be increased
by 1/3 of its minimum and maximum limits. If the crime is committed through the media, the
author may be punished with an imprisonment penalty of up to 2 years or with a fine never
inferior to 120 days (Article 183 nr 2).

The court, nevertheless, may refrain from a penalty if the author explains the offensive claim
before the court and the claimant considers it as satisfactory. The court refrain from a penalty if
the offence was provoked by an illicit or a reprehensible act by the offended claimant.

Article 328 nr 1 provides a penalty of a maximum imprisonment of up to 3 years or a fine for
offending the President of the Republic or the person who constitutionally replaces him. If the
insult or defamation against the head of state are made through public speech, published writing
or drawing, or through any technical public communication method (technical means that
allows communication with the public), the author may be punished with an imprisonment
penalty from 6 months up to 3 years or with a fine never inferior to 60 days.
In the Portuguese legal framework, defamation is considered a private crime. This means that in
order to the alleged crime be submitted to trial a private accusation is required
55
(Article 188 nr
1). Such requirement does not, however, exist in those cases in which the victim is a member of
a body that exercises sovereign power, of the State’s Council, Minister of the republic,
magistrate, member of an organ of the government of one of the Autonomous Regions, Justice
Purveyor, civil governor, member of an organ of the local autarchies or of an organ or service of public authority, commander of a public force, member of a court’s jury, witness, lawyer, agent
of security forces or security services, public officer civil or military, public forces agent or a
citizen in charged of public service, teacher or examiner or a minister of religious cult in the
exercise of his/her functions or because of those functions (Article 188 nr 1 a)).

Developments in the application of criminal and civil law provisions concerning defamation
at domestic level

In 2003, 3 971 cases of defamation, injury and other crimes against a person’s honor were
brought before courts and 1 494 defendants were convicted.

Currently the question of decriminalization of defamation is still under consideration by the
Portuguese authorities.

2. Applicable law
Most Portuguese conflict rules are found in the Civil Code. For the Portuguese, personal law is
the law of citizenship.

The Civil Code establishes that personal law applies to the existence and protection of personal
rights, as well as to restrictions on the exercise of those rights. Therefore it is citizenship that
determines the concession of individual rights, the content of each of those rights and
restrictions placed upon the exercise thereof.

Art 27 Civil Code – Rights of the Person
5. Personal law applies to existence to judicial protection not recognised according to
Portuguese law

6. Personal law determines if a personal right exists and which of the personal rights are
protected.

7. With regard to foreign individuals we believe the correct interpretation is that personal law
for the foreign individual determines the content of the complaint while the Portuguese law
determines the procedural route by which the complaint may be made. This interpretation is the
only one conforming with another basic principle of international private Portuguese law which
states that Portuguese law is always lex fori in procedural matters.

8. Notwithstanding the above consideration with regard to civil responsibility (e.g. offence)
Portuguese law offers protection for personal rights and privacy.

In the Civil Code the conflict rule concerning the law applicable to responsibility is determined
by the law on non-contractual obligations which brings forth formal rights for the person and for
privacy.

ARTIGO 45º
(Responsabilidade extracontratual)
1. A responsabilidade extracontratual fundada, quer em acto ilícito, quer no risco ou em
qualquer conduta lícita, é regulada pela lei do Estado onde decorreu a principal actividade
causadora do prejuízo; em caso de responsabilidade por omissão, é aplicável a lei do lugar
onde o responsável deveria ter agido.
2. Se a lei do Estado onde se produziu o efeito lesivo considerar responsável o agente, mas não
o considerar como tal a lei do país onde decorreu a sua actividade, é
aplicável a primeira lei, desde que o agente devesse prever a produção de um dano, naquele
país, como consequência do seu acto ou omissão
3. Se, porém, o agente e o lesado tiverem a mesma nacionalidade ou, na falta dela, a mesma
residência habitual, e se encontrarem ocasionalmente em país estrangeiro,
a lei aplicável será a da nacionalidade ou a da residência comum, sem prejuízo das
disposições do Estado local que devam ser aplicadas indistintamente a todas as pessoas.

Art. 45 (Civil Responsibility) 1. Civil responsibility, arising from a legal or illegal act, or the
constitution of strict liability, is governed by the law of the country where the act occurred
giving rise to the harm; or, in the case of liability by omission, the law of the country where the
act ought to have occurred. 2. If the law of the country where the harm occurred considers the
agent liable, but the laws of the country where the act giving rise to the harm does not, the
former law is applicable on condition that the agent could have prevented the existence of the
harm (the act), in that country, as a consequence of his / her action.

3. However, if the person sustaining harm and the appellant are of the same nationality, or in the
lack thereof the same usual country of residence, and they find themselves from time to time in
the same foreign country, the applicable law is the law of their common nationality or residence,
without prejudice to the provisions of the local country which must currently be applied to all
individuals.


3. Transposition of the Directive
The law relating to personal data protection, transposes to the Portuguese Law Directive
95/46/CE of the European Parliament and the Council of October 24th 1995, concerning data

protection on physical citizens, taking into account the treatment of personal data and the free
movement of such data.
Art. 4 establishes its scope of application and in paragraph 3 reference is made to the present
law in treating information accrued in the realm of activities carried out by the responsible party
on Portuguese territory
Art 4 “A presente lei aplica-se ao tratamento de dados pessoais efectuado:
a) No âmbito das actividades de estabelecimento do responsável do tratamento situado em
territorio português;
b)Fora do território nacional, em local onde a legislação portuguesa seja aplicável por força
do direito internacional;
c) Por responsável que, não estando estabelecido no território da União Europeia, recorra,
para tratamento de dados pessoais, a meios, automatizados ou não, situados no território
português, salvo se esses meios só forem utilizados para trânsito através do território da União
Europeia”

It respects the Directive (text ends here - could be something missing).

http://ec.europa.eu/justice/civil/law/index_en.htm

http://ec.europa.eu/justice/civil/files/study_privacy_annexe_3_en.pdf

[jassi]

All very complex. Lets hope the judge understands it.

[Anna]

PT law on defamation seems quite different to English law.

There are a lot of question marks for me.

- "Defamation" (as a term) is only mentioned in the penal code - and this is a civil case. It remains to be seen whether the principles of defamation and the accompanying legal defences in the penal code will be taken into account or not. The civil code covers the concept, but in a different way.

It's possible that all of the legal principles deemed to be relevant may be taken into consideration, however that doesn't seem to be clear yet.

- Normally, the onus is on the plaintiff in a civil case (whatever the nature of the complaint), but this doesn't apply if a legal presumption overrides it. It did in the Murat case, but he was suing a newspaper (journalist and editor) so press laws applied. Even so, it was only on appeal that this legal presumption was validated, IIRC. Curiously, it didn't reverse the onus (AFAIK), simply, he didn't have to prove that the allegations were false.

In his case, the issue wasn't just about unproven defamatory allegations: it also concerned the invasion of privacy through, inter alia, publishing photos of him without his consent and the fact that he had never sought to be in the public eye.

One of the legal issues was that CdaM was not the only media outlet involved in these activities and therefore shouldn't have to bear sole responsibility for any damage. However, he still had to present the damage caused and somehow justify the amount sought as a remedy - which is pretty hard to do, bearing in mind that the civil code appears to be geared towards the more concrete type of case in which you have to prove who broke your window and how much it cost to replace.

This is where, as we all know, PT and UK law are so different, Carana.
 The injunction on Amaral,s book was, apparently an action of caution, whilst the allegations were investigated.
The way I read it, the later. overturning of the injunction was a result of the allegations being unproved by the applicants.
In other words, the applicants did not prove that the book, was causing a negative effect in their private lives, or lowering their good name in any manner and was deemed to be an honest opinion by the Author.

It is solely down to the applicant to prove any disruption to their private lives or damages resulting from it, apparently.

"The injunction is deemed not valid because it was not proved."
http://pjga.blogspot.com/2014/07/appelate-court-of-lisbon-decision-about.html

I hope that any mistakes made in that ruling will be put to rights in the current trial.

[slartibartfast]

It's not a question of what I believe; it's a question of what English law states.

If there is a hidden inference or innuendo that lowers reputation and also is untrue (or, UK law, not proven true) that is libel.

No, you imply that it is libellous to say that at a point in the investigation the Police believed Stagg was the guilty. That is a perfectly true statement.

[ferryman]

No, you imply that it is libellous to say that at a point in the investigation the Police believed Stagg was the guilty. That is a perfectly true statement.

I don't imply anything.

I happen to know what the legal position is by English law.

Libel can be implicit or explicit.  If you omit facts that, included, would paint a different and non-pejorative picture, you are guilty of libel.

When Tony Bennett produced his video of the questions Kate McCann didn't answer, he libelled Kate because he made no mention of the fact that hers and Gerry's arguido status were both lifted without any charges being brought.

That is to say that libel can be implicit as well as explicit.

That is by English law.

We would probably need someone like Jean-Pierre to confirm the position by Portuguese law.

http://marketingland.com/uk-court-finds-tweet-libelous-because-of-implied-meaning-46724