Unspecified Injunction - Process number 6000/09.8TVLSB-A.L 1
Lisbon Appellate Court Decision
I - Report
Kate Marie Healey McCann, Gerald Patrick McCann, Madeleine Beth McCann, Sean Michael McCann and Amelie Eve McCann have filed an unspecified injunction
against:
Goncalo de Sousa Amaral,
Goncalo de Sousa Amaral,
Guerra e Paz, Editores, SA
VC - Valentim de Carvalho - Filmes,
Audiovisuais, SA andTVI - Televisao Independente, SA
alleging that the first two applicants
are the mother and father of the other applicants, who all are minors, 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, Goncalo 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. (1)
Ce premier référé date de mai 2009.
Ce premier référé date de mai 2009.
In an appeal, that decision was revoked by a decision of this Appeal Court, and the production of evidence was demanded. After evidence was produced before the lower court, a new sentence was issued, C'est le second référé, qui a pris effet début septembre 2009.
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 authorial 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 Euros 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 Goncalo de Sousa Amaral, Guerra e Paz, Editores, SA, VC - Valentim de Carvalho - Filmes,
Audiovisuais, SA and TVI - Televisao Independente, SA. All of them are 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 Portuguese Republic.
En février 2010, a new sentence was issued, après jugement en janvier 2010, 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 to follow]
II - Legal basis and Reasons
The following facts were proved:From the injunction 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 was comprised of
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 révélations 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 thesis that he presents in the
book.
11 - The book's French edition was and
is systematically and profusely published on the internet, at least
at: [a list of websites follows - including this blog]
12 - Between the date when the
Portuguese edition was published, on 24th June, 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 TV programme was broadcast in
Portugal at least on those two occasions.
16 - The same TV programme/video is
intrinsically based upon the contents of the book Maddie The
Truth of the Lie.
17 - In the video in question, the first defendant once again sustains his theory that the Third applicant is no longer alive, that her death occurred within the
Ocean Club apartment and that her parents, the first applicants,
concealed the cadaver of their daughter.
18 - At least two million two hundred
people viewed the first broadcast of this TV programme.
19 - At the end of April 2009, the DVD
corresponding to this programme began to be commercialised, with the
title and subtitle of Maddie : What Lies Beneath the Truth
- A powerful documentary based on the best seller Maddie - The
Truth of the Lie by Gonçalo Amaral.
20 - 75.000 copies of this DVD have
already been distributed for sale.
21 - The DVD is published, at least, on
the web site of the Third Defendant.
22 - The first applicants are married
to each other and are the parents of the third, fourth and fifth applicants.
23 - During the Criminal Investigation
in which the first applicants were constituted arguidos, the
archiving dispatch was issued, referring to them on pages 145-173,
dated 21st July 2010.
24 - Madeleine Beth McCann has been
missing since the of 3rd May, 2007.
25 - Curricular articles were divulged
on the Internet relating to the first defendant, that spoke of him as
a correct, structured, sociably adept man, namely to perform
political roles.
26 - The first defendant is a person
much mentioned in the press.
27 - The curricular information
previously referred to (point 25) reveals a man who studied
engineering, graduated in legal and criminal sciences and who was an
officer/inspector of the PJ for 27 [sic] years.
28 - The first defendant knows the
significance and scope of an archiving dispatch in a criminal case.
29 - The first defendant knows who
holds power over an investigation, who can open or re-open it and
under which circumstances.
30 - The first defendant knows what
defamation and slander mean.
31 - The first defendant knows what it
means not to be at the service of a criminal investigation.
32 - The first defendant has
professional experience and is an adult.
33 - With the divulgation of his theory
about the events of May 3, 2007 in Praia da Luz, the first defendant,
with the help of the three other defendants, saw himself being
promoted and earned money.
34 - The first defendant had
pretensions to intervene in local political life.
35 - The defendants aim to divulge the
book and DVD around the world, gaining financially, commercially and
socially, which deepens the suffering of the first two applicants and
makes the searches for the third applicant difficult.
From the oppositions
1 - The defendant was the coordinating inspector of the Maddie Case investigations from the 3rd
of May, acting in this quality, within the scope of Inquest process
No 201/07.0GALGS of the Lagos Public Ministry Services, until the
date when he was withdrawn from the case, on the 2nd of October,
2007.
2 - He retired from service on the 1st
of July, 2008.
3 - On the date that he was withdrawn
from the case, it was of the defendant's knowledge that some of the
investigators had formulated the opinion that Madeleine McCann had
died in the apartment, that a simulation of abduction occurred and
that her parents were suspected of concealing a cadaver.
4 - The investigation activities that
the first defendant reports in the book and in the documentary are
contained in the investigation process.
5 - The investigation process was made
available in electronic format, namely to the national and
international media, who proceeded to divulge it, thereby enabling
knowledge, comments and public and universal discussion of it.
6 - Any person can have access to these
facts and to the documents of the investigation process in which they
were verified, on the internet, only a "click" away.
7 - The witness friends of the first applicants did not make themselves available to appear in Portugal
for a diligence of reconstruction of facts, as was determined by the
dispatch from the Prosecutor's Office, on pages 4636 to 4638 of
Volume XII of the Investigation.
8 - Under the terms of the editorial
contract, relating to the book Maddie - The Truth of the Lie,
signed with the first Defendant, the author's rights of ownership
were temporarily ceded to the second defendant, only with regards to
the editing of the book.
9 - The book was published, through
other editors, in some countries (apart from France) as pointed out
under item 8 of the provisional injunction, as follows:
. In Spain, in September 2008, with the
title Maddie - La Verdad de la Mentira, with eventual
commercialisation in Castilian language into Latin American
countries.
. In Denmark, in November 2008, with the
title Maddie - Sandheden on Lognem, with eventual
commercialisation in other Nordic countries.
. In Italy, in December 2008, with the
title Maddie - La Verita della Menzogna, with
commercialisation in the Italian language throughout the world.
. In Holland, in April 2009, with the
title Maddie - De Waarheide Achter de Leugen, with
commercialisation in the Dutch language throughout the world.
. In Germany, in June 2009, with the
title Maddie - Die Wahrheit über die Lüge, with
commercialisation in Austria and Switzerland.
10 - There is an English version
circulating on the internet, on the web site where a Portuguese
version can also be found.
11 - On their web site (www.etc), the
first applicants cite the theory of the first defendant.
12 - The daily newspaper Correio
da Manhã, in its edition of 3rd October 2007, published a
supplement with the title Maddie, The Diary of a Mystery.
13 - By means of the fund that was
created by the first applicants, diligences that are considered to be
opportune are being made in order to obtain leads about what happened
to and to discover the whereabouts of the third applicant.
14 - During the first trimester of
2008, VC Filmes learned that the first Defendant was
writing a book, the publication of which would take place during the
first semester of that same year, with an objective and factual
description and the revelation of elements, at the time un-published,
of the investigation into the disappearance of Madeleine McCann which
he had led.
15 - VC Filmes expressed
their interest to the first defendant for an audiovisual adaptation
(documentary and fiction) of said book.
16 - And with him [G. Amaral], an
agreement was made for ceding the exclusive rights in their [VC
Filmes] favour for the adaptation of a book into a documentary or
fiction that could have the format of a book for cinema or a telefilm
for television and which should be explored on all platforms and on
all kinds of media.
17 - The author of the book agreed to
participate as narrator of the documentary.
18 - And he ceded to VC Filmes
all the ownership of author's rights and connected rights that
belonged to him as author and narrator, namely for effects of the
exploration by VC Filmes of the documentary by all
methods and by all means.
19 - VC Filmes ceded to the
fourth defendant the rights of television broadcast or transmission
in Portugal of the audio visual documentary entitled Maddie –
The Truth of the Lie, produced by them.
20 - And, as happens with all other
cinematographic and audio visual works produced by VC Filmes,
the latter ceded to its distributor Valentim de Carvalho
Multimedia, S.A., namely the rights of edition and distribution
of the documentary for publication in video format, thereby making
themselves their representative as regards the exploration or
commercialisation of the rights of television broadcast or
transmission of this documentary in foreign countries.
21 - Valentim de Carvalho
Multimedia in representation of VC Filmes, ceded
the rights of television broadcast or transmission of the same
documentary to television stations in Spain, Andorra, France,
(Flemish) Belgium, Denmark and Poland, on dates previous to the
notification to VC Filmes of the decision presented in
this injunction.
22 – Until that same date, the
documentary in question was reproduced only once in order to be
edited, published and sold in Portugal, in video format, in this case
a DVD.
23 - Neither Valentim de Carvalho
Multimedia nor VC Filmes had ceded any rights of
edition or author's rights concerning the content of the same
documentary (or the video that reproduces it) for publication in any
other part of the world.
24 - The reproduction and editing were
authorised by Valentim de Carvalho Multimedia to the
company Presslivre, Imprensa Livre, S.A., owner of the
newspaper Correio da Manhã by means of a contract
established between both parties, under which terms, the DVDs, their
covers and packaging would be produced on account, by order and under
the responsibility of Presslivre, to be distributed and
commercialised jointly with the newspaper Correio da Manhã.
25 - And the entire process of
registration and classification of the video edition (DVD) of the
documentary at IGAC would be, as it was, developed by Valentim
de Carvalho Multimedia, the costs of which process would be
covered by Presslivre, as indeed was done.
26 - 75.000 DVD units were produced for
said edition.
27 - The respective distribution for
sale took place together with a distribution for sale of the edition
of the newspaper Correio da Manhã on the 24th of April,
2009.
28 - Only a small number of the DVDs
distributed was effectively sold, 63.369 units having been returned
to Presslivre.
29 - The investigation files were made
available in electronic format, namely to the national and foreign
press, which disseminated it, enabling it to become known and to be
publicly and universally commented upon and discussed.
30 - Anyone has access to those facts
and to the documents from the investigation process in which they
were verified, on the internet, at the distance of a "click".
31 - The documentary was published and
sub-titled in English, by third parties who published it on the
internet, without the knowledge and against the will of VC
Filmes.
32 - The first two Applicants, in
collaboration with British television station "Channel 4"
also produced a documentary about the disappearance of the third
Applicant in Praia da Luz in May 2007, which expressed their version
of the events.
33 - This audio visual piece, titled Still Missing Madeleine and which corresponds to a
documentary, with a duration of 60 minutes, was subject to a
preliminary licensing agreement by Mentorn International
to TVI, for the Portuguese territory, with an exclusivity
duration for the period between 7th May 2009 and 6th May 2010.
34 - This agreement even began to be
negotiated before the first screening by the defendant [TVI] of the
documentary based upon the book of the first defendant, and was duly
reduced to a written text, in the form of a deal memo (business deal), which was signed by both parties on 15th April 2009.
35 - "TVI" programmed the
screening of this documentary with the version of the applicants, in
such a manner as to complement the showing of the documentary based
upon the book by the first defendant, seeking by acting in this way,
to clarify the public in an unbiased way, showing various versions
and possible explanations for the same facts.
36 - On 23rd April 2009, TVI
was informed by telephone that Mentorn was not going to
comply with the preliminary licensing agreement in question, which
was confirmed in writing, on 5th May 2009.
37 - The reason why Mentorn
was not going to comply with the agreement in question was that the
McCann family had given instructions that they did not want the
programme to be licensed to TVI.
38 - The documentary that reports the
version of facts defended by the applicants was screened on 12th May
2009 by SIC (TV channel), with the title Maddie – two
years of anguish, having been previously been broadcast in the
UK.
39 - In that documentary, an
explanation is given, with the help of private detectives, of the
version of facts defended by the applicants and a re-construction of
the night of the disappearance of Madeleine McCann is made.
40 - The first applicants have easy
access to national and international press, having given an interview
to the American television programme Oprah, presented by
the well known Oprah Winfrey and which had already been shown in
Portugal, also by SIC, on 4th May 2009 and again on 12th May.
41 - That programme was transmitted
throughout the entire world by means of available satellite signals
and cable networks.
42 - In this interview the first applicants once again explained their theory about the fateful events
of the night of 3rd May 2007 and once again launched an appeal for
her search, revealing new facts about the private investigations that
they hired.
43 - In the documentary presented by SIC, the first applicants revealed the existence of at
least one more witness statement, re-constructions and photo fits
that reinforce the abduction theory.
Suite ici
(1) Cet argument sera repris par la Cour d'Appel devant statuer sur la sentence de 04.2015. Il y figurera non comme fondamental, mais comme signant l'absurdité de la situation.
