Should the €500k plus interest have been confiscated by the State?

[Jean-Pierre]

The attached link - not very well written but may be helpful in elucidating the impenetrable Portuguese defamation laws.

http://www.freemedia.at/newssview/article/portuguese-defamation-laws-still-reflect-authoritarian-concept-of-power-expert-says.html

[ferryman]

10. The Civil Code does not establish any defences to defamation claims and there are no caps on damages.

No defences?

Surely that can''t be right?

But neither a cap on damage.

[Alice Purjorick]

I do know that books are no longer painstakingly handwritten on papyrus, but how exactly can a book be edited (including file photos photoshopped to look like artists' drawings), published and ready for distribution in three days without sharing the contents with anyone, oh wise one?

I know that, you know that, the judge knows that but does it matter?
If the rule is strictly "thou shalt not publish whilst thou holdeth office" rather than "thou shalt not begin to write a book whilst thou holdeth office".............?

[Alice Purjorick]

It is the judgement of the Portuguese Court in reaction to the disgusting and unjustified behaviour of a former public servant.

Had he been whatever Joe Bloggs is called in Portugal he probably would not have been sued for damages because the actual damage done would have been negligible.

He chose to write a book as the senior investigating officer, which gave his narrative considerable weight ... and I think the damages award is commensurate with what the Judge considered actual damage done.

And there's me thinking courts "did" law not moral judgements.

[Jean-Pierre]

And there's me thinking courts "did" law not moral judgements.

Ultimately, most law is based on morals.  And courts can "do" law but express disapproval.  Contemptuous Damages, for example.

[ferryman]

Ultimately, most law is based on morals.  And courts can "do" law but express disapproval.  Contemptuous Damages, for example.

Surely there must be defences to civil defamation in Portugal, mustn't there?

[ferryman]

In civil cases, there should be clear rules in terms of possible defences. In Portugal, for example, there is a strand of opinion among the courts holding that in the case of a defamatory allegation [non-pecuniary] damages are owed – even if the allegation is true.

Only an opinion ...

[Alice Purjorick]

Ultimately, most law is based on morals. And courts can "do" law but express disapproval.  Contemptuous Damages, for example.

Or a system of norms/standards that is found acceptable?
There are two schools of thought on this: "legal and moral are inseparable" vs "legal and moral aren't inseparable"
Best leave this one lie. We know what we meant 

[Carana]

I know that, you know that, the judge knows that but does it matter?
If the rule is strictly "thou shalt not publish whilst thou holdeth office" rather than "thou shalt not begin to write a book whilst thou holdeth office".............?

How about "thou shalt not shareth warblings based on unreleased files with Benji the Binman whilst thou holdeth office"?

[Carana]

The attached link - not very well written but may be helpful in elucidating the impenetrable Portuguese defamation laws.

http://www.freemedia.at/newssview/article/portuguese-defamation-laws-still-reflect-authoritarian-concept-of-power-expert-says.html

Thanks, JP.

It seems to me that criminal defamation is a hangover from the dictatorship era.

Still clear as mud, though, in terms of the concept in a civil case.

Particularly this point:

10. The Civil Code does not establish any defences to defamation claims and there are no caps on damages.


As far as I'm aware, "difamação" as a term isn't even mentioned in the civil code, is it?

In the penal code, the concept appears to be wrapped up in the elastic concept of "honour" (and potentially all sorts of illegal practices in terms of how information may have been obtained, malicious intent, etc), whereas the civil code appears to have a broader concept of the infringement of all sorts of personal rights.

In the Supreme Court ruling on the injunction, the rights claimed by the McCanns appear to have been dismissed - but the scope of that ruling was limited to the issue at hand.


But then the respective rights (albeit not exactly the same ones / or not worded in the same way ) are the subject of the main trial:

At the centre of this trial, there is a conflict between two existing rights, the right to good name and reputation of the claimants (through the presumption of innocence that they always were entitled to) and the right to freedom of expression of the defendant, in the concrete field of the right to opinion he is entitled to...

[faithlilly]

Does anyone know if the McCanns actually filed the criminal complaint  claimed in this article :

'McCanns accuse Amaral of violating the judicial secrecy Correio da Manhã

Couple's lawyer moves for criminal action

P.M.C.
14 January 2010 - 15h54
Thanks to Joana Morais for translation

The McCann couple will file a criminal action against Gonçalo Amaral for allegedly violating judicial secrecy when he published facts concerning the investigation, in his book "Maddie – The Truth of the Lie".

According to Lusa Agency, the British couple's lawyer, Isabel Duarte, stated that the action will be filed after a certificate from the trial of the book's prohibition is extracted, which is expected to happen as soon as next week.

The accusation of violation of judicial secrecy is based on the date when the former inspector’s book was ready, which happened three days after the Republic's prosecutor wrote the process' archiving dispatch.

Isabel Duarte defends that "Gonçalo Amaral diffused the process to Guerra & Paz [the book's editor] when the process was still under judicial secrecy. He diffused facts and he was not authorised to do so".

The lawyer recalled that the video that was broadcast on TVI is evidence of that infraction, because it was an important piece within the investigation and stated that she is going to file a criminal complaint against the former inspector herself, over "false statements" to the court. According to Isabel Duarte, this accusation is based on statements by Gonçalo Amaral that he has "no real estate [nor any] participation in a firm", when in reality such is not true.

The former inspector is thus being accused over false statements, of violating the judicial secrecy, and of defamation by the McCann couple and by their lawyer.'

[Mr Gray]

Thanks, JP.

It seems to me that criminal defamation is a hangover from the dictatorship era.

Still clear as mud, though, in terms of the concept in a civil case.

Particularly this point:

10. The Civil Code does not establish any defences to defamation claims and there are no caps on damages.


As far as I'm aware, "difamação" as a term isn't even mentioned in the civil code, is it?

In the penal code, the concept appears to be wrapped up in the elastic concept of "honour" (and potentially all sorts of illegal practices in terms of how information may have been obtained, malicious intent, etc), whereas the civil code appears to have a broader concept of the infringement of all sorts of personal rights.

In the Supreme Court ruling on the injunction, the rights claimed by the McCanns appear to have been dismissed - but the scope of that ruling was limited to the issue at hand.


But then the respective rights (albeit not exactly the same ones / or not worded in the same way ) are the subject of the main trial:

At the centre of this trial, there is a conflict between two existing rights, the right to good name and reputation of the claimants (through the presumption of innocence that they always were entitled to) and the right to freedom of expression of the defendant, in the concrete field of the right to opinion he is entitled to...

It seem that the presumption of innocence is an important part of this ruling and one that is not present in every defamation claim.

[Jean-Pierre]

I know that, you know that, the judge knows that but does it matter?
If the rule is strictly "thou shalt not publish whilst thou holdeth office" rather than "thou shalt not begin to write a book whilst thou holdeth office".............?

The rule is "having been a policeman, even though retired, thou shalt not publish a book accusing people of committing crimes".

 

[Montclair]

No, personally I think the state should prosecute Amaral for breaking judicial secrecy laws, in a separate action, and then bang him up.

Sorry to disappoint you but the McCanns with their lawyer Isabel Duarte filed a complaint for breach of judicial secrecy in 2010 and nothing came of it!

[Miss Taken Identity]

We are all well aware about the reason for the award. Nothing to do with Liabel. The lack of evidence of 'pain and suffering', and negative impact on the 'search' 'caused' by the book should have had the 'case' thrown out. And technically it was- on those grounds. They were awarded 'lottery money due to something which should have been dealt with by a criminal court- if a crime had been committed  by Amaral.

So, if Sr Amaral is arrested, charged and convicted of his book writing criminality then the chances of him being fined €50000.00 is..well...not realistic now is it?

So there you have it...parents who facilitated their daughters fate ( whatever that was /is) get fame, money and those who disbelieve their version (one of many) accounts of what happened that night go freee... live happily ever after...

They used the laws to protect themselves which shows them to be cruel in the eyes of many.

The truth is out there waiting to be found!