by Marta Madalena
Botelho, lawyer – 09.09.2009
Traduit par Astro
The book "The Truth
about the Lie", by Gonçalo Amaral, which focuses on the
disappearance of Madeleine McCann, that happened in May of 2007 in
Praia da Luz, in the Algarve, is going to be removed from the market,
following a decision from the Civil Court of Lisbon, which forbids
its sale.
In "The Truth about
the Lie", Gonçalo Amaral subscribes the thesis that the parents
were involved in the little English girl's disappearance, a
conclusion that is essentially anchored on the fact that the PJ's
dogs detected blood and cadaver odour inside the apartment where the
child disappeared from, and inside the automobile that the McCanns
hired after the disappearance.
Unsatisfied about the
publication of the book in Portugal – and very likely, trying at
any cost to prevent the book from being translated and published
abroad, mainly in the United Kingdom – the McCanns, on their behalf
and on behalf of their children (including Madeleine), have requested
an injunction against Gonçalo Amaral and the editors Guerra e Paz,
Editores, SA (for the book) and VC-Valentim de Carvalho Filmes,
Audiovisuais (for the video that was meanwhile produced from the
book), almost two years after the publication and the sale of 175
thousand copies (in Portugal alone).
In its decision, the
Court decided in favour of the petitioners. Therefore, and according
to the judicial decision that was made public today, any expressions
of the theory of the child's death and a concealment of the cadaver
with the parents' involvement, are forbidden in any shape or form.
The author of the book and the editors are forbidden from "citing,
analysing or commenting upon, verbally or in writing, the parts of
the book or the video that defend the theory of death or concealment
of the body", as well as from "reproducing or commenting,
giving an opinion or an interview, where said thesis is defended or
where it can be inferred". In order to prevent that either the
book or the video can be published abroad, the author and the editors
are also prohibited from selling the book's and the video's
copyrights.
The decision goes even
further and does not merely prohibit the sale of the remaining copies
or of new editions of the book, but also prohibits the edition of
"other books and/or videos that defend the same theory and that
are destined to be sold or published by any means in Portugal".
In order to prevent both the book and the video from being publicised
abroad, the author and the editors are also forbidden from selling
the rights that they hold over the works (source).
Well, in "The Truth
about the Lie", Gonçalo Amaral described the investigation,
listed the collected evidence, and based on that, he built a thesis
and presented his own conclusions. Therefore, this book is a free
exercise of opinion, divulged under the freedom of expression that is
constitutionally acknowledged and guaranteed in our country.
Deep down, it seems that
Gonçalo Amaral does nothing more than to emit his perception of what
he believes is the most likely scenario for the disappearance of
Madeleine. According to the impressions that he has collected, he
believes that the evidence point into the direction that the child
died inside the apartment, and he considers the possibility that the
parents had some kind of direct or indirect intervention in the
concealment of the cadaver.
It does not seem possible
to infer, from this, that the former inspector states that the
parents are responsible over the disappearance. This is merely a
mental construction that is based on the investigation that was
carried out, which is to say, an exercise in (free) opinion about
certain facts.
By preventing the
divulgation of any opinion that establishes the connection between
the McCanns and the disappearance of Madeleine, the Court is limiting
the freedom of expression not only for Gonçalo Amaral, but for all
the people who reach the same conclusion. By forbidding the
publication and divulgation in Portugal of any books and/or videos
that defend the same thesis, the Court is limiting the right to emit
an opinion about certain facts. What seems to be at stake is an act
of censorship on what is thought and expressed about the "Madeleine
McCann" case in Portugal.
According to the Court,
this is a situation where fundamental rights are at conflict: on one
side, Gonçalo Amaral's right to freedom of expression, and on the
other, the McCanns' personality rights. In that conflict, the Court
decided that the personality rights should prevail.
But it is important to
clarify whether or not this is indeed a matter of conflicting
fundamental rights, which is to say, it is absolutely essential to
analyse whether or not the McCanns' personality rights are being
damaged, as there re no doubts that the book was published under the
freedom of expression of its author.
It is at this point that
I disagree with the Court's decision. In effect, while Gonçalo
Amaral merely expresses personal convictions, which is to say, an
opinion about certain facts that took place, and only taking personal
conclusions thereof, not making any accusations, it seems that
although one may admit that the situation is uncomfortable for the
McCanns, it does not damage their personality rights. It would be
damaging if the conclusions were unreasonable or baseless, but given
the fact that the author of the book elaborates a logical reasoning
and bases his conclusions on facts, what may be said is that the
conclusions may be wrong, but not that they are gratuitous, and
therefore, that their purpose is to target the McCanns' fundamental
personality rights.
On my behalf, I would say
that in this case, the McCanns' fundamental personality rights were
not violated, and that, on the contrary, the Court's decision attacks
Gonçalo Amaral's freedom of expression.
Hypothetically, and
taking this matter to an extreme, I dare to say that to forbid the
emission of a free exercise in opinion, in logics and in
argumentation like the one that was made by Gonçalo Amaral, is to
open the door to the possibility of considering that personality
rights are being damaged by, for example, any accusation from the
Public Ministry that comes to be considered as not sustained due to a
lack of proof. Excessive, maybe, but possible, using a reasoning that
resembles that of this judicial decision.
Given the fact that
everything indicates that Gonçalo Amaral and/or the editors will
appeal this decision, we shall see whether or not the superior
instances agree with this point of view. Anyway, what remains to be
seen is if the Court maintains the now expressed opinion, if there
is, at least, opposition and if the process moves into trial.
