Comité
sur les aspects juridiques de l'industrie médiatique de l'IBA
International Bar Association
- Session annuelle 6.10.2009 à Madrid
Sous la présidence de Mark H. Stephens, cette session porte sur les différentes approches que peuvent adopter les avocats pour protéger la réputation de leurs clients, particuliers ou non. L'un des thèmes est le tourisme de la diffamation, les défis posés par la publication en ligne et les conséquences de la réputation déclarée droit de l'homme par la CEDH sur la liberté d'expression.
L'accent est mis sur les MC qui se sont trouvés sous le feu continu des médias après l'enlèvement de leur fille. Gerald MC parlera de leur combat pour tenir la presse et obtenir des excuses et des dommages en raison d'allégations diffamatoires.
Lessons learned the hard way: the reporting of the Madeleine McCann investigation. The tragic disappearance of three year old Madeleine McCann from a holiday apartment in Portugal has without doubt been one of the most prominent news stories in the UK for many years, and attracted considerable media coverage around the world. Madeleine was abducted on the night of 3 May 2007 while her parents Gerry and Kate McCann dined with friends in a nearby tapas restaurant. The alarm was quickly raised to try to find their daughter, and public interest in the story fuelled a voracious desire by the media to report on the investigation and on Madeleine's likely whereabouts. Although the case of Madeleine McCann is in many ways – thankfully – unique, the reporting of the investigation highlights a number of interesting aspects of English media law.
Beyond the reach of contempt of court laws
When the story broke, the media was immediately faced with a problem: there was enormous public interest in Madeleine's fate, but Portuguese law forbade either the police or, to a considerable extent, the McCanns themselves from providing information to the press about the investigation.
Unlike in the UK, where the police routinely brief the press on major investigations (both officially and off the record), journalists found themselves in a complete vacuum of confirmed facts yet under enormous editorial pressure to get a scoop on the latest developments.
What ensued was increasingly wild speculation about what had happened to Madeleine, as the finger of suspicion was pointed at a number of individuals – including, most notably, Madeleine's parents.
Kate and Gerry McCann were named as 'arguidos' by the Portuguese police on 7 September 2007 – which in fact meant they were 'persons of interest' to the Portuguese police, rather than that they were formally suspects, as the term 'arguido' was frequently mis-translated by the British press.
It was during this time that the McCanns were interviewed by Portuguese police, which sent the media into a frenzy of even wilder speculation.
Had the case concerned a criminal investigation in the UK, then the press would have been far more restricted by the laws of contempt of court. Section 2 of the Contempt of Court Act 1981 makes it an offence of strict liability to publish anything which creates a 'substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.' The provision applies only to 'active' proceedings, which in essence means after someone has been arrested for, or charged with, a criminal offence. Although the McCanns were not arrested or charged under Portuguese law, the Contempt of Court Act in any event applies only to criminal proceedings brought in England, Wales and Northern Ireland; as such the media were able to report on the police investigation into the McCanns' alleged involvement with scant regard for how their coverage may ultimately prejudice any prosecution.
Wrongly accused
Of course, no prosecution was ultimately brought against the McCanns; having protested their innocence throughout, the Portuguese Prosecutor finally exonerated them on 21 July 2008 when their 'arguido' status was lifted and it was confirmed that there was no evidence whatsoever to suggest that they had played any part in their daughter's disappearance.
But throughout the autumn and early winter of 2007, the McCanns had continued to be the focus of relentless, and at times hysterical media coverage which made various allegations to the effect that they had killed their daughter and had conspired to cover-up her death.
Pleas made to the press to exercise greater caution and balance in reporting the story fell on deaf ears, and when the onslaught of allegations continued the McCanns decided they had to take action – not least because they feared that the campaign to find Madeleine would be irreparably damaged for as long as the public was misled into believing (entirely wrongly) that her parents had killed her.
In January 2008, complaints in libel were sent to four national newspapers published by the Express Group – the Daily Express, the Daily Star and their sister Sunday titles. These newspapers more than any had published grossly defamatory articles about the McCanns, often under sensational front page headlines such as 'PARENTS' CAR HID A CORPSE' and 'MADDIE MUM "SOLD HER".'
Because of the news 'vacuum', many of the articles complained of appeared to be based on nothing more than speculation, information from purported (but unnamed) 'police sources', and allegations regurgitated from the Portuguese press.
It is open to a newspaper to defend a libel complaint on a number of grounds. The most obvious defence is that of justification – if a defendant can prove that the allegations it published were substantially true, then the libel claim will fail. However, given the lurid and utterly baseless allegations which the McCanns complained about, a defence of justification seemed out of the question.
A second defence open to media defendants in England and Wales is that of Reynolds qualified privilege – responsible journalism on a matter of public interest. This defence is in a state of evolution, but there is an increasing body of English law which suggests that neutral reporting of serious allegations over a long period may be defensible, especially on a matter of high public interest – even where those allegations turn out to be untrue. However, it was immediately apparent that on any analysis the Express and Star's journalism was anything but responsible. While their journalists may have hoped that including token references to the McCanns' denials of wrongdoing may have been sufficient, it was clear that this did nothing to provide the balance necessary for a Reynolds defence to succeed.
It was perhaps unsurprising, therefore, that the Express Group responded to the McCanns' libel complaints by admitting liability for the libels it had published about them.
Righting the wrong
The volume of the libellous coverage published – over 100 articles were complained about, many of them front-page – was unique in the history of English libel law. In the circumstances, the Express Group were forced to agree to take the equally unprecedented step of publishing prominent apologies on the front pages of the four newspapers in question.
The highly unusual nature of the complaints also had an effect on the damages which were claimed from the Express Group.
Under English libel law, general damages have for some time been effectively 'capped' in the region of a £200,000 to £250,000 maximum for awards made at trial, amounts which would of course be reduced where cases settle out of court.
However, quite apart from the fact that Gerry and Kate McCann were each entitled to claim separately for the damage they had each suffered, their case appeared to be in the territory of a potential exemplary damages claim.
Exemplary, or punitive, damages are available only in limited circumstances under English law – in libel proceedings the claimant must prove that the defendant has published the articles complained of 'with guilty knowledge, for the motive that the chances of economic advantage outweigh the chances of economic penalty' (Broome v Cassell 1972 A.C. 1027 at 1079). In practice, this can be a very difficult hurdle for a claimant to overcome, as not only does it involve demonstrating that the defendant was, at the very least, reckless as to the truth or falsity of the allegations complained of, but also that it acted in the hope or expectation of material gain.
Newspapers of course contain a large number of articles, so it will usually be impossible to prove that when the defendant took the decision to publish the article complained of, it expected this would lead to an increase in sales.
However, the sheer number of Express Group articles containing allegations about the McCanns – together with anecdotal evidence to the effect that a front-page article about Madeleine McCann added as many as 70,000 copies to the circulation of the Daily Express – suggested that a credible case for exemplary damages may be made out by the McCanns.
In the end, the question did not have to be decided in court, as the parties were able to agree an out of court settlement. However, the total amount agreed – £550,000, which was donated at the McCanns' request to the Find Madeleine Fund – suggests that the Express Group may have accepted that there was a real risk of an exemplary damages award being made against them if the matter did ever come to court.
The front page apologies and damages paid to the McCanns on 19 March 2008, together with the subsequent exoneration of the McCanns by the Portuguese prosecutor, have not only gone a long way to repairing the damage caused to the McCanns' reputations by the press, but have also undoubtedly caused the press to question their reporting methods in ongoing criminal investigations. Such are the repercussions of the case that it forms a central part of an ongoing UK Parliamentary inquiry into press standards, privacy and libel – indeed Mr McCann has recently given evidence to a government committee hearing on his family's experiences of the media.
As Kate and Gerry McCann's search for their daughter continues, it is to be hoped that the press as a whole has learned from what proved to be a very expensive lesson for the Express Group.
_____________________________________________________
International Bar Association
- Session annuelle 6.10.2009 à Madrid
Sous la présidence de Mark H. Stephens, cette session porte sur les différentes approches que peuvent adopter les avocats pour protéger la réputation de leurs clients, particuliers ou non. L'un des thèmes est le tourisme de la diffamation, les défis posés par la publication en ligne et les conséquences de la réputation déclarée droit de l'homme par la CEDH sur la liberté d'expression.
L'accent est mis sur les MC qui se sont trouvés sous le feu continu des médias après l'enlèvement de leur fille. Gerald MC parlera de leur combat pour tenir la presse et obtenir des excuses et des dommages en raison d'allégations diffamatoires.
Lessons learned the hard way: the reporting of the Madeleine McCann investigation. The tragic disappearance of three year old Madeleine McCann from a holiday apartment in Portugal has without doubt been one of the most prominent news stories in the UK for many years, and attracted considerable media coverage around the world. Madeleine was abducted on the night of 3 May 2007 while her parents Gerry and Kate McCann dined with friends in a nearby tapas restaurant. The alarm was quickly raised to try to find their daughter, and public interest in the story fuelled a voracious desire by the media to report on the investigation and on Madeleine's likely whereabouts. Although the case of Madeleine McCann is in many ways – thankfully – unique, the reporting of the investigation highlights a number of interesting aspects of English media law.
Beyond the reach of contempt of court laws
When the story broke, the media was immediately faced with a problem: there was enormous public interest in Madeleine's fate, but Portuguese law forbade either the police or, to a considerable extent, the McCanns themselves from providing information to the press about the investigation.
Unlike in the UK, where the police routinely brief the press on major investigations (both officially and off the record), journalists found themselves in a complete vacuum of confirmed facts yet under enormous editorial pressure to get a scoop on the latest developments.
What ensued was increasingly wild speculation about what had happened to Madeleine, as the finger of suspicion was pointed at a number of individuals – including, most notably, Madeleine's parents.
Kate and Gerry McCann were named as 'arguidos' by the Portuguese police on 7 September 2007 – which in fact meant they were 'persons of interest' to the Portuguese police, rather than that they were formally suspects, as the term 'arguido' was frequently mis-translated by the British press.
It was during this time that the McCanns were interviewed by Portuguese police, which sent the media into a frenzy of even wilder speculation.
Had the case concerned a criminal investigation in the UK, then the press would have been far more restricted by the laws of contempt of court. Section 2 of the Contempt of Court Act 1981 makes it an offence of strict liability to publish anything which creates a 'substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.' The provision applies only to 'active' proceedings, which in essence means after someone has been arrested for, or charged with, a criminal offence. Although the McCanns were not arrested or charged under Portuguese law, the Contempt of Court Act in any event applies only to criminal proceedings brought in England, Wales and Northern Ireland; as such the media were able to report on the police investigation into the McCanns' alleged involvement with scant regard for how their coverage may ultimately prejudice any prosecution.
Wrongly accused
Of course, no prosecution was ultimately brought against the McCanns; having protested their innocence throughout, the Portuguese Prosecutor finally exonerated them on 21 July 2008 when their 'arguido' status was lifted and it was confirmed that there was no evidence whatsoever to suggest that they had played any part in their daughter's disappearance.
But throughout the autumn and early winter of 2007, the McCanns had continued to be the focus of relentless, and at times hysterical media coverage which made various allegations to the effect that they had killed their daughter and had conspired to cover-up her death.
Pleas made to the press to exercise greater caution and balance in reporting the story fell on deaf ears, and when the onslaught of allegations continued the McCanns decided they had to take action – not least because they feared that the campaign to find Madeleine would be irreparably damaged for as long as the public was misled into believing (entirely wrongly) that her parents had killed her.
In January 2008, complaints in libel were sent to four national newspapers published by the Express Group – the Daily Express, the Daily Star and their sister Sunday titles. These newspapers more than any had published grossly defamatory articles about the McCanns, often under sensational front page headlines such as 'PARENTS' CAR HID A CORPSE' and 'MADDIE MUM "SOLD HER".'
Because of the news 'vacuum', many of the articles complained of appeared to be based on nothing more than speculation, information from purported (but unnamed) 'police sources', and allegations regurgitated from the Portuguese press.
It is open to a newspaper to defend a libel complaint on a number of grounds. The most obvious defence is that of justification – if a defendant can prove that the allegations it published were substantially true, then the libel claim will fail. However, given the lurid and utterly baseless allegations which the McCanns complained about, a defence of justification seemed out of the question.
A second defence open to media defendants in England and Wales is that of Reynolds qualified privilege – responsible journalism on a matter of public interest. This defence is in a state of evolution, but there is an increasing body of English law which suggests that neutral reporting of serious allegations over a long period may be defensible, especially on a matter of high public interest – even where those allegations turn out to be untrue. However, it was immediately apparent that on any analysis the Express and Star's journalism was anything but responsible. While their journalists may have hoped that including token references to the McCanns' denials of wrongdoing may have been sufficient, it was clear that this did nothing to provide the balance necessary for a Reynolds defence to succeed.
It was perhaps unsurprising, therefore, that the Express Group responded to the McCanns' libel complaints by admitting liability for the libels it had published about them.
Righting the wrong
The volume of the libellous coverage published – over 100 articles were complained about, many of them front-page – was unique in the history of English libel law. In the circumstances, the Express Group were forced to agree to take the equally unprecedented step of publishing prominent apologies on the front pages of the four newspapers in question.
The highly unusual nature of the complaints also had an effect on the damages which were claimed from the Express Group.
Under English libel law, general damages have for some time been effectively 'capped' in the region of a £200,000 to £250,000 maximum for awards made at trial, amounts which would of course be reduced where cases settle out of court.
However, quite apart from the fact that Gerry and Kate McCann were each entitled to claim separately for the damage they had each suffered, their case appeared to be in the territory of a potential exemplary damages claim.
Exemplary, or punitive, damages are available only in limited circumstances under English law – in libel proceedings the claimant must prove that the defendant has published the articles complained of 'with guilty knowledge, for the motive that the chances of economic advantage outweigh the chances of economic penalty' (Broome v Cassell 1972 A.C. 1027 at 1079). In practice, this can be a very difficult hurdle for a claimant to overcome, as not only does it involve demonstrating that the defendant was, at the very least, reckless as to the truth or falsity of the allegations complained of, but also that it acted in the hope or expectation of material gain.
Newspapers of course contain a large number of articles, so it will usually be impossible to prove that when the defendant took the decision to publish the article complained of, it expected this would lead to an increase in sales.
However, the sheer number of Express Group articles containing allegations about the McCanns – together with anecdotal evidence to the effect that a front-page article about Madeleine McCann added as many as 70,000 copies to the circulation of the Daily Express – suggested that a credible case for exemplary damages may be made out by the McCanns.
In the end, the question did not have to be decided in court, as the parties were able to agree an out of court settlement. However, the total amount agreed – £550,000, which was donated at the McCanns' request to the Find Madeleine Fund – suggests that the Express Group may have accepted that there was a real risk of an exemplary damages award being made against them if the matter did ever come to court.
The front page apologies and damages paid to the McCanns on 19 March 2008, together with the subsequent exoneration of the McCanns by the Portuguese prosecutor, have not only gone a long way to repairing the damage caused to the McCanns' reputations by the press, but have also undoubtedly caused the press to question their reporting methods in ongoing criminal investigations. Such are the repercussions of the case that it forms a central part of an ongoing UK Parliamentary inquiry into press standards, privacy and libel – indeed Mr McCann has recently given evidence to a government committee hearing on his family's experiences of the media.
As Kate and Gerry McCann's search for their daughter continues, it is to be hoped that the press as a whole has learned from what proved to be a very expensive lesson for the Express Group.
_____________________________________________________
NIGEL TAIT (Carter-Ruck)
session co-chair ― I’m delighted to introduce our panel of
speakers to you, all of whom are acknowledged experts in the field of
media law. First we have Herman Croux from Brussels in Belgium...
Then we have Doctor Roger Mann from Hamburg in Germany... From
Toronto in Canada, I’m pleased to introduce Julian Porter QC... Our
next panellist is Kelli Sager from Los Angeles in California... Next
from Belfast and Dublin we have Paul Tweed... Also joining us today
is Adam Tudor who successfully represented our key note speaker
today, Gerry McCann, against the British press, and who can tell and
talk about legal aspects of the case.
Our keynote speaker today
is Mr Gerry McCann whose daughter, Madeleine, so tragically
disappeared from a holiday apartment in Portugal in May 2007. Four
months later, Madeleine’s parents were named as arguidos or persons
of interest by the Portuguese police, sending the British media, in
particular, into a frenzy of wild speculation and such speculation
continued even beyond 21 July, 2008 when the Portuguese police lifted
the McCanns’ arguido status and confirmed that there was no
evidence whatsoever to suggest that Mr and Mrs McCann were involved
in the disappearance of their daughter.
We so often hear, and
rightly so, about the importance of a free press and our friends in
the United States jealously guard the First Amendment protection
given to the press and to their citizens, but seldom do we hear
from those caught in the spotlight of publicity and I’m
extremely grateful to Mr McCann for agreeing to be our keynote
speaker today. Mr McCann will stay for questions but now I would like
him to tell you his story. Thank you very much.
GERALD MC ― Thank
you, Nigel, and I’m very glad to see that the title says I’m the
keynote speaker because this certainly isn’t a lecture. I don’t
have any specific knowledge of the law in the United Kingdom and any
other jurisdiction although I’ve had more than a lifetime’s worth
of dealing with lawyers over the last two and a half years. So I’m
very much speaking regarding our own personal experience of the
trauma that we’ve been caught up in.
I think Nigel’s already
pointed out some of the main facts. We were on holiday on the 3 May
2007 when Madeleine was abducted from the apartment we were
sleeping in. (1) The world media really had descended on Praia de Luz
within 24 hours and generally during those first two to three,
four months or so, it was incredibly supportive and I’ll
touch on that in some detail. (2) Towards the end of August, in
particular around the time when we were declared arguidos, then we
had some of the most vile media reporting probably, certainly in
the history of British journalism. And in 2008 we had several
libel claims for defamation, and invasion of privacy. Later that
year, as Nigel says, the file was closed and the Portuguese judiciary
concluded that there is no evidence to support any of the
allegations against us and we have continued and ongoing action
within Portugal, which I’m not going to speak of very much because
it’s still in the judicial process. (3)
This is a brief outline
of the talk, and I’ll probably speak for about 20 minutes. I want
to first of all talk about decisions and whether to interact with
the media or not. It’s not compulsory. I’ll talk about a
strategy which we tried to employ. We’ll show some of the
supportive press coverage and I will show you some of the front page
headlines which caused us to take action and the results of that
legal redress. And I’ll conclude with just a few minutes really
about some thoughts and our experiences and recommendations or
suggestions which is up to the legal profession and the judiciary
whether they act on of course.
The first thing to say is
that you know, it’s not compulsory; I think most people
feel that when they’re caught up in a trauma, that they should
interact with the media. (4) Any parent in this audience will
understand the complete devastation that we felt when we discovered
Madeleine was gone, and particularly within the first few hours when
the search around the vicinity of Praia de Luz found no trace of
her, and we felt completely devastated. And in the early hours
of the morning we phoned family and close friends to tell them of
what happened. (5) And I think the feeling of helplessness that Kate
and I had was magnified by the distance of our loved ones and what
they felt, that they couldn’t do anything for us. And actually
several people independently contacted the media to tell them what
had happened and in fact a very close friend was already distributing
photographs of Madeleine to all the major news outlets in the early
hours of the morning, which we didn’t know. (6)
One thing we were
discussing last night over dinner; it was interesting that the
only news organisation that actually refused to publish the
photograph was the BBC who came back saying ‘how do we know
this is true, and who are you to distribute the photograph?’ Every
other news outlet took it straight away and by the early hours of the
morning it was already on our breakfast television in the UK. By the
time Kate and I returned from the police station about 9 o’clock at
night, there were approximately 200 journalists in Praia de
Luz.
I can’t say for certain
what factors were influencing this intense media interest within 24
hours of her abduction. I think the fact that it was a foreign child
abducted on holiday certainly played a key part. The only
other case we can think of in the United Kingdom was of Ben Needham,
who was abducted in 1991 on a Greek island. And we don’t
know of any other cases involving British children taken
whilst on holiday, so that certainly played a part. The fact that we
were doctors seemed to influence things and that this had
happened to professional couple and I think Madeleine’s picture
herself that she was such a beautiful innocent young girl who
was taken and clearly many of the journalists involved felt a great
deal of empathy with us as well. (7)
Clearly the holiday
company saw this media needed to be managed and engaged Bell
Pottinger straight away and they sent out their head of crisis
management, Alex Woolfall, to deal with the media. They also provided
to us trauma counselling, which was very, very important in how we
dealt with the situation. And we had counselling sessions
within 36 hours of this happening and I have to say it played a
tremendous part in helping me cope with the situation and try to do
things to influence the outcome. I’d like to play a video, if we
can get this.
Video: ‘One cannot
describe the anguish and despair that we are feeling as the parents
of our beautiful daughter, Madeleine. We request that anyone who may
have any information related to Madeleine’s disappearance, no
matter how trivial, contact the Portuguese police and help us get her
back safely. Please, if you have Madeleine, let her come home to her
mummy, daddy, brother and sister. As everyone can understand how
distressing the current situation is, we ask that our privacy is
respected to allow us to continue assisting the police in their
investigation. Thank you.’
That video’s from about
9.30 pm on the 4th of May and I wanted to show it because I think
even at that stage when I saw the media it filled me with dread about
the potential intrusion of privacy, but I also saw it as an
opportunity of helping the search, and the salient point, I
haven’t seen that video for at least 18 months, and it brought back
to me the salient points of which we were trying to achieve; to
get information into the investigation, which we still strive to
do, as Madeleine is still missing, secondly, to let as many people
as possible, know that Madeleine is missing, and thirdly, even
though in that first night we were already concerned about
intrusion of privacy, and I think I’ll show you in the
following slides that we had very good reasons to be concerned. (8)
So the primary objectives
were to get the best possible investigation so when I put the
slide up showing that we were talking about the campaign strategy,
much of it was not media related, and so we had very early contact
with the UK foreign office and other government officials
striving to get the best possible investigation. We had to look at
getting information into the enquiry and after the first few days
when Madeleine was not discovered in the vicinity of the Algarve,
then we had to think okay, where could she have been taken, and that
influenced the decisions in which countries to visit and try and
target so Spain’s a neighbouring country to Portugal, so one of the
first things that we did was we got a message to David Beckham,
asking him to do an appeal. He was playing for Real Madrid in
this very city at the time and he agreed to that and did a very
emotional appeal. And that had an amazing effect on the overall
campaign because he was such a worldwide superstar and it seemed to
have a snowball effect.
We took advice from the
crisis management team and Alex Woolfall was absolutely brilliant.
What he said to us was that for any media that you do, you must
clearly define what your objective is from doing the media and
secondly, ask yourself the question, how is it going to help, and
that helped us tremendously with our future press conferences,
statements and photo calls. (9) We also did a number of TV and magazine
interviews, I have to say, mainly at the request of the media, and
that is one of the times where Alex would say you’re just
feeding the beast. We subsequently had a public audience with the
Pope (10) and we had visits to Spain appealing for information and help
and also we went to Germany and the Netherlands who make up the
largest group of tourists to the Algarve, after the British and
Irish, and we also visited Morocco which is obviously not far across
the Mediterranean.
This early media coverage
was generally very, very supportive. The largest weekly
newspaper in the United Kingdom, the News of the World, had got a
number of celebrities to agree to contribute to an award and £1.5
million was pledged. Additionally we had a businessman from Scotland
who pledged another £1 million. There was, without doubt,
unprecedented public interaction.
There were a huge amount
of posters put up all over the United Kingdom and further afield and
generally there was a focus on trying to find Madeleine and/or her
abductors. The poster in the middle was released with JK
Rowling’s last Harry Potter book (11) and at the time,
particularly in those first few weeks, I would say that the normal
media rivalry between different organisations was put to one side and
there was a real feeling that people would not let such tragic crimes
happen again and that we really were going to make a difference and
try and find Madeleine. I think, I don’t expect you to read all of
this, but this was an editorial in a larger selling daily newspaper
in the United Kingdom, The Sun, which was printed the day after we
did our first TV interviews which was more than three weeks after
Madeleine was abducted and I would just like to point out the very
bottom line and it says The Sun is proud, with other newspapers,
to play our part in their hunt, meaning Kate and I’s hunt, for
Madeleine and that summed up the general feeling at the time.
However, we even early
on, realized there were a number of drawbacks of having such intense
media coverage. There was a voracious, almost insatiable appetite
for new stories in relation to Madeleine and actually the media
were generally operating in a vacuum because of Portugal’s judicial secrecy laws and that the police weren’t allowed to
speak directly to the media. We didn’t want to give too much
information regarding exactly what happened and the timeline, for two
reasons; one, fear of breaking the judicial law and secondly, we
didn’t want the abductor to know information or put it in
the public domain that only that other person could know. (12)
Within weeks we already
saw that there was a focus in the media coverage. There was a
switching of attention away from Madeleine and it started to
become the Kate and Gerry show. There was intense pressure to
do media, which I have to say would have been for media sake, which
we tried to resist. And it also became clear to us that Madeleine
stories were selling newspapers and that there had to be a
Madeleine story and she was becoming a commodity and people were
starting to forget that she was a real child.
In June 2007, after we
completed our visit, we tried to signal a change in our strategy. We
appointed a campaign manager and her role was not directly a
spokesperson. We anticipated that the media interest would naturally
dwindle and the role was really about ensuring that we could
maintain a search in the long term. We also signaled that Kate
and I would not be making regular press statements or conferences and
we asked the media to no longer photograph our two-year-old twins.
We hadn’t asked for that immediately, primarily because I just
didn’t think it was enforceable, given the huge amount of media
attention and particularly in another country. We might have managed
it in the UK but even I doubt it there.
Towards the end of August
and September 2007 there was really quite a dramatic change in the
media coverage. We were declared arguidos, which the closest
thing in UK law is a person of interest and what that allows you to
do is have a lawyer present during interviews. And it means that the
police have to ask you questions in which your answers may
incriminate yourself and as witnesses (13) you’re not allowed to
have a lawyer present and you must answer all questions. So being
given the status of arguidos is actually to protect your own legal
interest, and whereas that was just translated as suspects, and
very much led to a number of damaging headlines. (14)
There were multiple
headlines that accused us either of directly killing Madeleine or
being involved in disposing of her body and you can imagine how
distressing this was when we were trying to ensure that there was an
active and ongoing search and clearly we felt if people believed
these stories, particularly in Portugal and further afield, then
there could be no search, if people believed Madeleine was dead.
I’m just going to spend
a minute or two showing you some of the front page headlines that
were printed in the United Kingdom press. I would also like to point
out that Amelie, who’s being carried by Kate here’s face is not
pixelated so suddenly as we were declared arguidos it was okay to
have our children’s photographs published on front page of
newspaper again with millions of circulation, put on the internet:
the multiple references to DNA in the cars, hair. (15)
So when we came back to
United Kingdom we felt that we had to do that to protect
ourselves from the intrusion. We did try and combat these negative
stories and really we had a trial by media
at this point. The criminal lawyers who were appointed to
defend us had multiple visits to the editors of all the national
newspapers along with our spokesperson. And I can tell you that they
assured the editors that there was not a shred of evidence to back up
these wild allegations. (16) There was a letter from the chief constable of Leicestershire police who was leading the
investigation from the United Kingdom end, urging restraint in the
coverage and emphasizing that many of the stories that were
published, had no grain of truth to them.
We also had further
discussions with the Press Complaints Commission about how we
may stop such coverage but despite these actions, the front page
headlines continued and the previous ones all happened within a
week of us coming back from Portugal. These ones are later. We
are now into October and DNA reference once again; further ones in
October. Now into the end of November and getting increasingly
bizarre and ultimately in the space of five days, there were three
front page headlines in January of 2008, that were regurgitating the
same stories and for us, we come to breaking point. And at that
point, although we’d had discussions earlier with Carter Ruck
and Adam Tudor who’s here today, we felt enough is enough and
we agreed to issue complaint letters against the worst offender and
we also got an agreement from Carter Ruck that if the case did go to
court, then they would represent us on a conditional fee
arrangement, which was very important to our decision to press
the button. The letters of complaint requested the removal of online
versions of the articles, full apologies and we asked for damages and
of course costs.
After an initial short
wrangle, the newspapers did not defend these complaints and they did
not argue for defence of truth of responsible journalism, which we
were advised would have stood very little chance in a court of law.
The complaints were settled out of court to our satisfaction and I
have to say that we had unprecedented front page apologies and
additionally a statement was read out in front of the judge in the
London’s High Court.
A total of £550,000 paid
in damages by one publisher alone, which was at our request, paid
directly into Madeleine’s fund. This is the fund that we set up to
help the search and we were told that the sum reflected the amount
of damages the distress would have caused us. And there were
certainly discussions that if this had gone to court, we could have
argued for exemplary damages and to be honest the QC whose counsel we
took, suggested that the damages we could have got would have been
much, much higher than what we accepted but the most important
thing for us was to get this out and to stop the coverage. And that
was a main motivation for doing it. Additionally the seven friends
who were on holiday with us, who had many similar allegations of
being involved in a cover-up, were awarded £375,000 which they
agreed also to pay into Madeleine’s fund, and we had a further
small settlement with one other publisher. (17)
Without a doubt there was
an effect of these successful complaints. There was massive TV
coverage and in some of the news channels it was the main news
item that day. Although there was lots of press present at the
High Court reading, there was rather less coverage in the newspapers,
which is not surprising. Subsequent to that, I would have to say
there was a dramatic effect with
much more cautious and responsible reporting. And one of
our concerns was obviously whether we would have burned our bridges
with the media and we would no longer get co-operation when we wanted
them to put information out but that has not been the case. There
is still tremendous amount of appetite when we helped the media to
help us get messages to the general public.
We mentioned invasion of
privacy and clearly we couldn’t stop being photographed. On the
very first night, the tour operators asked us if we wanted to go to a
villa and I said I felt that would be worse. We’d be completely
hemmed in with all the media at the end of a drive and we did stay in
a holiday complex and it did allow us to move around. However when we
returned home, we had news journalists and paparazzi at the end of
our drive for several months, ramming cameras into the car, including
when the twins were in it.
Even early on there
seemed to be a complete blurring of what would be considered our
public persona, doing things that related to Madeleine, and what was
private so we were followed around, followed on the beach. The
children were being followed and photographed, and even when we tried
to get away from it all, there were surreptitious journalists trying
to obtain photographs on us on our first holiday without Madeleine
and they did manage to find us at the airport when we were returning
home.
The Press Complaints
Commission in the UK generally have been helpful in enforcing
protecting the privacy of our children and that’s something that
I’m not sure exists in other countries as well. The greatest
violation of our invasion of privacy was the publication of
Kate’s, translation of Kate’s journal, which was
seized during the initial police investigation. And actually there is
a judge’s order in the Portuguese file which ordered the
destruction of all copies of the journal as being of no interest to
the investigation. And this article, front page, with several pages,
word for word of the journal was published inside, was done without
our consent, and we very rapidly complained. That journal was written
for Madeleine and for our other children and I cannot tell you how
distressing it was for Kate to be told that it had been published.
That complaint was settled, I have to say quickly, with the
publishers who had been supportive up to that point generally.
I’d just like to finish
with a few thoughts: If I was asked to go back and would I have
interacted with the media in the same way then the answer would have
been almost completely yes. We did it with the best
intentions. Our hope was to get the best possible search
and in fact we will continue to interact with the media if it’s
appropriate. Pour MMC ou pour eux ? With hindsight, I would have made a clearer boundary
and withdrawn from allowing the media to photograph us doing
anything that was not Madeleine related in public. And again with
hindsight, although we were absolutely certain when it came to it,
that we were ready to take action, with hindsight we should have
taken action earlier, against the newspapers in the UK for
publishing these stories.
These really are just
some thoughts for the future rather than anything that may be
enforced in law, but we do know, and the media know, that they’re
incredibly powerful. In the past they’ve been showing it by
displaying images and they can help find children and that was
why we chose to interact with them. (18) However they have the potential
to destroy lives and if we had not been supported as well as we had,
by many different people including Carter Ruck, then they could
have destroyed our lives and what was already seriously damaged.
So with such power comes
marked responsibility. I think it is extremely important that
ordinary people like ourselves do have the right to legal redress and
I’m not sure that we could have gone through with these complaints
against large organisations without the safety net of a conditional
fee arrangement and that is certainly something that I think
within the UK, should continue. And I’d like to ask for an appeal
to the media, to remember that at the centre of every tragic story
there are real people and real children and real families and we are
not characters. Thank you.
(1)
Madeleine
a été enlevée de l'appartement où nous dormions.
Cette
évocation très elliptique de la réalité donne à penser que, pendant que
les parents dormaient, quelqu'un est entré et a volé leur enfant. L'exposé se poursuit sur le même mode saisissant :
En 24 h les
médias du monde entier étaient à PDL. D'une manière générale
ils nous ont soutenus incroyablement pendant les premiers mois et
puis vers la fin août et quand nous sommes devenus témoins assistés
ils ont écrit sur nous les plus vils articles de l'histoire du
journalisme britannique. Et en 2008 nous avons entamé plusieurs
actions en diffamation et pour invasion de notre vie privée. Ensuite
l'affaire a été classée, rien n'a corroboré les allégations
contre nous et nous avons une action en cours au Portugal dont je ne
dirai rien parce qu'elle est encore en phase d'instruction.
(2) Gerald MC tint un autre discours deux ans plus tard devant la Commission Leveson : Firstly, the first really bad thing was an article that was written in a Portuguese paper which was entitled, "Pact of silence", and it was starting to refer that there was some sort of sinister agreement between us and our friends to cover up what had happened, and I thought that was rather ludicrous, considering that we were all acting under judicial secrecy and couldn't speak about the details of the event. But that -- it was probably towards the end of June 2007, and slowly deteriorated through July, culminating in September 2007. Par ailleurs, lors du festival de Edinburgh le 24 août, GMC se livra à une attaque des médias qui en surprit plus d'un.
(3) L'enquête, pour différentes raisons dont le refus de la demande du procureur de procéder à une reconstitution n'est pas la moindre, ne permit pas de déterminer de quelle sorte de crime avait été victime Madeleine MC. Sans crime, pas d'accusation possible. Le rapport accompagnant l'ordonnance de classement sans suite ne peut logiquement pas être un certificat d'innocence.
(4) Gerald MC pense... mais cette pensée est discutable. Lui-même parle de l'interaction intense avec les médias comme d'une initiative inédite. La police, les magistrats du parquet, les profilers l'ont critiquée, argumentant que, si la fillette avait été enlevée et était encore vivante, cette hyperdivulgation de son minois mettait sa vie en danger ou inciterait à la soustraire totalement aux regards. Nul auparavant ne le fit et nul après ne le fera probablement, compte tenu du bilan désastreux : beaucoup de bruit pour rien.
(5) Gerald MC rapporte qu'il a parlé à ses proches, au téléphone, cette nuit-là, mais il passe sous silence ce qu'il leur a dit.. Or tout le monde conviendra que lesdits proches se sont fondés sur les paroles de GMC quand ils ont alerté les médias au petit matin. Or, ces paroles sont bien différentes du discours que Gerald MC tint aux gendarmes, puis aux OPJ. Aux proches (famille ou amis), qui sont plusieurs à l'avoir rapporté, GMC dit que l'appartement était verrouillé et que les persiennes et la fenêtre de la chambre où dormait Madeleine avaient été forcées. À la police il déclara seulement qu'ils avaient trouvé la fenêtre et les persiennes ouvertes. Ils ne fermaient pas la porte du patio..
(6) Cette allégation d'ignorance a été reprise, sur un mode allusif, lors de l'audition devant la Commission Leveson. Est-elle bien crédible ? Selon les relevés d'appels téléphoniques (dossier de police), les échanges ont été nombreux entre les MC et leur ami Jon C. D'où venaient les photos ?
(7) Ces éléments contribuent certainement à l'impressionnant succès médiatique. Mais on peut douter qu'ils auraient suffi sans l'absolument spectaculaire "persiennes/fenêtre forcées, enfant enlevée de son lit", une trépidante narration et une vraie rumeur qui, comme toutes les rumeurs, était née pour durer, non en dépit des dénégations (justifiées, aucun signe d'effraction) du gérant de l'Ocean Club, mais à cause d'elles.
(8) Le bilan, tout compte fait et sans oublier les fabuleuses sommes payées par les tabloïds, semble très positif. Gerald MC, du reste, dit plus loin que si c'était à refaire, il referait.
(9) Gerald évite remarquablement de signaler que ces campagnes, fortement déconseillées par les autorités judiciaires en charge de l'affaire, n'ont servi à rien sinon à imprimer durablement dans la tête des gens l'image de OM (Our Maddie) et à persuader que cette image correspondait à une petite fille réelle, vivante, en bon état, aimée peut-être et quelque part.
(10) S'il est un peu délicat de sous-entendre que la bénédiction a été sollicitée par le pape, rien n'oblige à indiquer comment ils en sont arrivés là. Les voies du Seigneur ne sont-elles pas impénétrables ?
(11) Ce livre parut le 21 juillet dans 65 pays. Il suffit de lire "Madeleine" et le blog de Gerald pour voir que ce n'était pas alors la vie en rose du côté médiatique : Ce même 22 juillet, le Sunday Express publia "Les parents de Maddy confrontés à l'enquête", pour "négligence" selon le journal... Nous nous étions habitués à ce type d'attaque, mais c'était toujours incroyablement douloureux car c'était nous blâmer, indirectement, pour l'enlèvement de Madeleine.
(12) Nous ne voulions pas donner trop d'informations... Les MC étaient en fait censés n'en donner aucune ! La lecture du dossier de l'enquête montre toutefois qu'il n'y avait pas pléthore d'informations confidentielles. Le secret de l'instruction pourrait avoir essentiellement servi à se dérober aux questions embarrassantes.
"Pas trop d'informations" ? Kate MC n'a-t-elle pas refusé de répondre à 48 questions que lui posait la PJ ... et Gerald n'a-t-il pas, sans état âme, changé sa narration des faits entre le 4 et le 10 mai ?
(11) Ce livre parut le 21 juillet dans 65 pays. Il suffit de lire "Madeleine" et le blog de Gerald pour voir que ce n'était pas alors la vie en rose du côté médiatique : Ce même 22 juillet, le Sunday Express publia "Les parents de Maddy confrontés à l'enquête", pour "négligence" selon le journal... Nous nous étions habitués à ce type d'attaque, mais c'était toujours incroyablement douloureux car c'était nous blâmer, indirectement, pour l'enlèvement de Madeleine.
(12) Nous ne voulions pas donner trop d'informations... Les MC étaient en fait censés n'en donner aucune ! La lecture du dossier de l'enquête montre toutefois qu'il n'y avait pas pléthore d'informations confidentielles. Le secret de l'instruction pourrait avoir essentiellement servi à se dérober aux questions embarrassantes.
"Pas trop d'informations" ? Kate MC n'a-t-elle pas refusé de répondre à 48 questions que lui posait la PJ ... et Gerald n'a-t-il pas, sans état âme, changé sa narration des faits entre le 4 et le 10 mai ?
(13) Les MC furent d'emblée victimes, Madeleine étant mineure, jusqu'au moment où ils devinrent témoins assistés.
(14) Que n'ont-ils expliqués ce que ce statut signifiait plutôt que se déclarer incroyablement offensés.
(15) Gerald MC ne s'indigne cependant pas, au moins publiquement, du fait qu'on arrache une petite fille à ses parents parce qu'elle ressemble à Madeleine ! En montrant un visage à tous les âges entre quelques mois et 3 ans, on le virtualise et on jette finalement en pâture au public une matrice à laquelle ressemblent une multitude de visages réels.
(16) De quelle autorité les avocats des MC, alors témoins assistés (donc formellement suspects), pouvaient-ils se réclamer lorsqu'ils assuraient les rédactions que rien n'incriminait leurs clients ?
(17) L'argent, certes, ne résoud pas tout, mais il calme !
(18) Quand les médias ont-il montré, outre leur bonne volonté, qu'ils pouvaient contribuer à retrouver un enfant ?
(15) Gerald MC ne s'indigne cependant pas, au moins publiquement, du fait qu'on arrache une petite fille à ses parents parce qu'elle ressemble à Madeleine ! En montrant un visage à tous les âges entre quelques mois et 3 ans, on le virtualise et on jette finalement en pâture au public une matrice à laquelle ressemblent une multitude de visages réels.
(16) De quelle autorité les avocats des MC, alors témoins assistés (donc formellement suspects), pouvaient-ils se réclamer lorsqu'ils assuraient les rédactions que rien n'incriminait leurs clients ?
(17) L'argent, certes, ne résoud pas tout, mais il calme !
(18) Quand les médias ont-il montré, outre leur bonne volonté, qu'ils pouvaient contribuer à retrouver un enfant ?
