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The lawyer for Kate and Gerry McCann
has filed an appeal in Portugal’s
Supreme Court following last month’s
Appellate Court decision in favour of
Gonçalo Amaral.
This is the latest move in the
long-running civil action over the
former lead detective’s controversial
book about Madeleine McCann’s
disappearance in 2007.
The court last month overturned an
earlier decision to award half a million
euros in damages to the McCanns. The
Supreme Court review is expected to
focus mainly on legal aspects of the
case rather than material issues.
The lifting of both the damages ruling
and the ban on further publication of
the book was seen as a highly
significant decision within traditional
areas of conflict: the right to honour
and privacy on the one hand, and to
freedom of expression and opinion on the
other
Freedom of expression is a fundamental
right enshrined in the Portuguese
constitution that applies to every
citizen, but it comes with certain
constraints.
While everyone has a right to express
and to publicise their thoughts in
words, image or by any other means, the
constitution also states that everyone
has a right to a good name and
reputation and to the protection of the
intimacy of private and family life.
The media have the right - indeed it is
their social function - to spread news
and give critical or non-critical
opinions. It is important that they do
so with respect for the truth and for
the intangible rights of others, said
the three appeal judges in this case
last month.
Amaral in his book, The Truth of the
Lie, not only included facts that were
evidence in the inquiry into the
disappearance of Madeleine McCann, but
aired his opinion that Madeleine was not
abducted. He suggested that she died
accidentally and that her parents
covered this up by concealing her body
and making up a false story.
The facts of the case in the form of
evidence in police files had already
been widely published in newspapers and
on the Internet as a result of an
initiative by the office of Portugal’s
prosecutor general. Amaral had the
legitimate right to describe and
interpret these facts.
The allegation expressed in his book
that the McCanns were involved in a
cover-up was not new either. It was
already in the public domain as it was
contained in the police files and was
the basis upon which the couple had been
declared official suspects, arguidos, in
the original investigation.
The judges indicated that the McCanns
had voluntarily limited their rights to
privacy by making themselves available
to the national and international media
to which they had easy access. In effect
they opened the way for anyone to debate
and express opinions about the case,
including opinions that contradicted
their own.
In essence, the appeal judges ruled that
the McCanns rights had not been
infringed and that Amaral’s book was a
lawful example of freedom of expression.
Many observers would argue that the
lawsuit instigated by the McCanns seven
years ago is turning out to be more
harmful and costly to them than the
defendants. It has inadvertently
generated publicity of a kind they least
wanted and boosted book sales, but they
have instructed their Lisbon lawyer,
Isabel Duarte, to continue to the
highest level.
Even that may not be the end of this
dispute. Amaral is considering turning
tables and suing the McCanns for
damages. |
