On 27 April 2015, the First Civil Chamber of Lisbon handed down judgment in the claim brought by Gerry and Kate McCann against the former Portuguese police officer, Gonçalo Amaral over his book Maddie – The Truth of the Lie. The claimants were awarded damages of €500,000 plus interest. The judgment, in Portuguese, is available here (McCanns v Amaral [pdf]). There is, at present, no definitive English translation.
The action was brought by Gerry and Kate McCann, on their own behalf and on behalf of their children, Madeleine, Sean and Amelie.
The first defendant Gonçalo Amaral was, until 2 October 2007, the Inspector of Judicial Police in charge of coordinating the investigation into Madeleine’s disappearance. He retired on 1 July 2008.
On 21 July 2008, the Attorney-General’s office issue a “Notice for the Media” announcing that the Madeleine inquiry was to be archived although it could be reopened if there was new evidence.
On 24 July 2008 the defendants published a book “Maddie – The Truth of the Lie” (“the Book”), written by the First Defendant. The Second Defendant, the publisher, Guerra e Paz Editores, SA, also distributed a DVD of the same title.
The Book claimed that Madeleine had died in the family apartment on 3 May 2007 as a result of an accident for which Gerry and Kate McCann were responsible but that they faked an abduction and then hid the body in order to evade justice.
The First Defendant earned a total of €342,111 from the sale of the Book.
The Court found a number of “proved facts” concerning the disappearance of Madeleine and the police investigation
The Court noted that, at the heart of the case was a conflict between the right to a good name and the presumption of innocence of the claimants and the right to freedom expression of the defendant.
The Constitution of Portugal recognises, under the heading “Other Personal Rights”
“Everyone is recognised as having the right to his or her personal identity, civil capacity, citizenship, good name and reputation, and likeness, the right to speak out and the right to the protection of the privacy of his or her personal and family life” (Article 26(1)).
Article 37 of the Constitution is headed “Freedom of expression and information” and provides
- Everyone has the right to express and publicise his or her thoughts freely, by words, images or other means, and the right to impart, obtain and receive information without hindrance or discrimination.
- The exercise of these rights shall not be prevented or restricted by any kind or form of censorship.
- Offences committed in the exercise of these rights are punishable under the general principles of criminal law, which the courts of law have jurisdiction to try.
- The rights to reply and to make corrections, and the right to compensation for loss suffered, shall be equally and effectively all individuals and corporate persons.
The Constitution also guarantees the presumption of innocence (Art 32(2)).
After considering case law from the European Court of Human Rights, Portugal and other jurisdictions, the Court noted that Gonçalo Amaral was the coordinator of the case, that even after retired he had a link to the public sector and his former position and this came with duties and one being the duty of confidentiality that continued after retirement. Employees in the judicial police cannot make public disclosures related to lawsuits except in limited circumstances. This duty was essential to the preservation of public confidence in the institutions of administration of justice.
The Court noted that the First Defendant relied on his former position both in the book and documentaries and that there was a period of only 3 days between the archiving of the case and the publication of the book.
In these circumstances, the conflict between rights should be resolved by taking into account the fact that the accused faced criminal investigation and the First Defendant was an investigator of the judicial police for 27 years. Having been in charge of the judicial police he did not enjoy full freedom of expression. His freedom was conditioned by his functions which imposed special duties on him, include the duty of confidentiality.
The Court said that there had not been any harm to the investigation into the disappearance of Madeleine or to Sean and Amelie. The only parties to be compensated were Gerry and Kate McCann. They were awarded €250,000 each. In addition they were awarded interest, calculated in the sum of €105,000.
The Court made an order prohibiting the Defendants from further distributing the book and requiring them to collect all copies of the book from bookstores and warehouses within 60 days. The defendants were prohibited from publishing new editions of the Book.
The decision was widely reported in the media. The McCanns were reported as saying that they were “delighted” with the verdict.
“We want to emphasise that the action was never about money. It has always been focused on the effects of the libels on our other children and the damage that was done to the search for Madeleine,”
The First Defendant has stated that he will appeal.