09 - SEP 09 - Opinion MM Bothelho (avocate)
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.