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: 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. 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 Journalists’ 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 he’s 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, I’m 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 Canada’s
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,
reporters’ 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,
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 McCann’s 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 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.
Gerry McCann:
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. 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. 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.
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.
Interacting with the media
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. 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 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.
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.
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.’
Read
Gerry McCann’s speech
Gerry McCann: 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.
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. 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
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 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, 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
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.
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 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 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.
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.
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 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.
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. 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. 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.
