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Gerry McCann at the IBA Madrid Annual Conference October 06, 2009

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Gerry McCann speaks at the IBA annual Conference

Gerry McCann speaks at IBA Annual Conference, Madrid

Gerry McCann, father of missing British girl Madeleine McCann, was the keynote speaker at an IBA Annual Conference session of the Media Law Committee. He spoke about his relationship with the media and media law over the past two years.

Other high profile speakers at the session included Herman Croux, Roger Mann, Julian Porter, Kelli Sager, Paul Tweed and Adam Tudor.
The session was chaired by Mark Stephens and Nigel Tait.

Nigel Tait, session co-chair: Iím 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. Herman has acted as an adviser to the Belgian Government on constitutional and judicial reform and was an assistant professor at the University of Lervin. Herman is a regular speaker at international conferences and is chair of the Copyright and Entertainment Law Committee of the IBA. He has been involved in many notable cases including the constitutionality of The Protection of Journalistsí Sources Act before the Constitutional Court.

Then we have Doctor Roger Mann from Hamburg in Germany. Roger is a specialist in defamation litigation and acts for national magazine and newspaper publishers as well as for politicians and chief executive officers. Recently heís acted for the Quant family and Susan Clatton, who are the main shareholders in BMW, over reports about an attempted blackmail.

From Toronto in Canada, Iím pleased to introduce Julian Porter QC who was called to the bar in 1964 and has practised litigation ever since. Julian has defended many of Canadaís leading writers, publishers and magazines and has acted for a large number of plaintiffs, suing newspapers and television stations. Julian has also produced two excellent conference papers which can be found on the IBA in Madrid conference website; one on the libel case brought by Richard Desmond against Tom Bauer and one dwelling on the deadpan humour of a British judge in the privacy case of Max Mosley against the News of the World.

Our next panellist is Kelli Sager from Los Angeles in California. Kelli is one of the only two lawyers in the United States to have been given the prestigious star ranking by the Chambers USA guide in the field of first amendment law and she represents the whole spectrum of media defendants including claims for libel, breach of privacy, reportersí shield laws and internet law.

Next from Belfast and Dublin we have Paul Tweed. Paul has practised as a media lawyer for over 30 years and is well known in the United Kingdom for acting for high profile Hollywood personalities such as Britney Spears and Harrison Ford, who on one view instructed Paul to clear their names of false allegations, well, but on another view represent libel tourists who exploit claimant friendly UK libel laws. But one sure way of telling that Paul is an accomplished lawyer is the fact that he also represents the selfsame journalists and newspapers that he has sued on behalf of claimants, but not at the same time!

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. My co-chairman today is one of the most well known lawyers in the United Kingdom. When I suggested to The Times newspaper that they write an article on what has happened to all the great characters in the British legal profession, we struggle to think of anyone other than Mark Stephens who could lay claim to such a title. Mark is a highly experienced lawyer, having won the case of Jameel and the Wall Street Journal, Europe, in the House of Lords for the defendant; a case on responsible journalism which most, if not all of us who practise in this area in the law, thought was a sure-fire winner for the claimant, but Mark nevertheless won for the defendant.

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, Madeleineís 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 McCannís arguidos 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 Iím 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.



Gerry McCann: Thank you, Nigel, and Iím very glad to see that the title says Iím the keynote speaker because this certainly isnít a lecture. I donít have any specific knowledge of the law in the United Kingdom and any other jurisdiction although Iíve had more than a lifetimeís worth of dealing with lawyers over the last two and a half years. So Iím very much speaking regarding our own personal experience of the trauma that weíve been caught up in.

I think Nigelís 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. 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 Iíll touch on that in some detail. 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 Iím not going to speak of very much because itís still in the judicial process.

This is a brief outline of the talk, and Iíll probably speak for about 20 minutes. I want to first of all talk about decisions and whether to interact with the media or not. Itís not compulsory. Iíll talk about a strategy which we tried to employ. Weíll 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 Iíll 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.

Interacting with the media

The first thing to say is that you know, itís not compulsory; I think most people feel that when theyíre caught up in a trauma, that they should interact with the media. 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. 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 couldnít 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 didnít know.

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 Ďhow do we know this is true, and who are you to distribute the photograph?í 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 oíclock at night, there were approximately 200 journalists in Praia de Luz.

I canít 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 donít 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 Madeleineís 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.

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. Iíd like to play a video, if we can get this.

Video: ĎOne 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 Madeleineís 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.í

Read Gerry McCannís speech

Gerry McCann: That videoís 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 havenít 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 Iíll show you in the following slides that we had very good reasons to be concerned.

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 Spainís 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. 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 youíre just feeding the beast. We subsequently had a public audience with the Pope 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 Rowlingís last Harry Potter book 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 donít 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 Iís hunt, for Madeleine and that summed up the general feeling at the time.

However, we even early on, realised 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 Portugalís judicial secrecy laws and that the police werenít allowed to speak directly to the media. We didnít 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 didnít want the abductor to know information or put it in the public domain that only that other person could know.

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 signalled 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 hadnít asked for that immediately, primarily because I just didnít 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 youíre 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.

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.

Iím 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, whoís being carried by Kate hereís face is not pixelated so suddenly as we were declared arguidos it was okay to have our childrenís 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.

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. 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 emphasising 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 weíd had discussions earlier with Carter Ruck and Adam Tudor whoís 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 Londonís High Court.

A total of £550,000 paid in damages by one publisher alone, which was at our request, paid directly into Madeleineís 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 Madeleineís fund, and we had a further small settlement with one other publisher.

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 couldnít 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. Weíd 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 thatís something that Iím not sure exists in other countries as well. The greatest violation of our invasion of privacy was the publication of Kateís, translation of Kateís journal, which was seized during the initial police investigation. And actually there is a judgeís 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.

Iíd 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 itís appropriate. 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 theyíre incredibly powerful. In the past theyíve been showing it by displaying images and they can help find children and that was why we chose to interact with them. 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 Iím 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 Iíd 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.

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