Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

10 - OCT 14 - Arrêt Cour d'Appel de Lx (1)




Unspecified Injunction - Process number 6000/09.8TVLSB-A.L 1

Lisbon Appellate Court Decision




I - Report
Kate Marie Healey McCann, Gerald Patrick McCann, Madeleine Beth McCann, Sean Michael McCann and Amelie Eve McCann have filed an unspecified injunction against:
Goncalo de Sousa Amaral,
Guerra e Paz, Editores, SA
VC - Valentim de Carvalho - Filmes, Audiovisuais, SA and
TVI - Televisao Independente, SA
alleging that the first two applicants are the mother and father of the other applicants, who all are minors, being that it is commonly known that little Madeleine disappeared on the 3rd of May, 2007, and her disappearance prompted an extensive police investigation.
The defendant, Goncalo Amaral, was one of the Judiciary Police (PJ) investigators that was involved in the investigation and later on wrote a book that is titled Maddie The Truth of the Lie, in which he defends, inter alia, that there is a serious possibility that little Maddie accidentally died in the apartment where she was staying and that her parents did, in some manner, undertake the concealment of her cadaver.


They conclude by requesting:
1. The prohibition of sale and the order to collect, for destruction, all the books and videos that are still left at points of sale or other deposits or warehouses;
2. The prohibition to perform any new editions of the book or the video, or of any other books and/or videos that defend the same already criticised thesis, and that are destined to be sold or made public by any other means, in Portugal;
3. The prohibition to cede the editorial or author rights of the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;
4. The prohibition to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two Applicants;
5. The prohibition to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;
6. The prohibition to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.


The petition was fully refused as it was understood that the perils of damage had already been consummated. (1)
Ce premier référé date de mai  2009.

In an appeal, that decision was revoked by a decision of this Appeal Court, and the production of evidence was demanded. After evidence was produced before the lower court, a new sentence was issued, C'est le second référé, qui a pris effet début septembre 2009.
which sustained the injunction and decided as follows:
a) The prohibition for the defendants to sell the books and videos that were still available at points of sale or at other deposits or warehouses and the obligation for the defendants to collect them and to deliver them to the depositary that is nominated below; 
b) The prohibition for the defendants to perform any new editions of the book or the video, or of any other books and/or videos that defend the same thesis, and that are destined to be sold or made public by any other means in Portugal;
c) The prohibition for the defendants to cede the editorial or authorial rights over the contents of the book or the video, or of any other books and videos about the same theme, for publication anywhere in the world;
d) The prohibition for the defendants to expressly cite, analyse or comment, verbally or in writing, any parts of the book or the video that defend the thesis of death of the third Applicant or of the concealment of her body, by the first two applicants;
e) The prohibition for the defendants to reproduce any comment, opinion or interview in which that thesis is defended or can be inferred;
f) The prohibition for the defendants to publish statements, photographs, or any other documentation that is allegedly connected to said book and video or said thesis.
Furthermore, the Court condemns each one of the defendant firms to pay a compulsory pecuniary sanction of 1000 Euros for each day that they do not obey the prohibitions or the order to apprehend the books and the videos.

After having been notified of that decision, appeals were filed by Goncalo de Sousa Amaral, Guerra e Paz, Editores, SA, VC - Valentim de Carvalho - Filmes, Audiovisuais, SA and TVI - Televisao Independente, SA. All of them are based on the right of freedom of expression of thought that is constitutionally consecrated and furthermore the fact that the statements and facts that were published in the book are the mere reproduction of solid data that is part of the investigation that was started at due time, and that said statements and facts are even part of the investigation's archiving dispatch that was signed by a Prosecutor of the Portuguese Republic.
En février 2010, a new sentence was issued, après jugement en janvier 2010, which basically upheld the sentence that had been issued before and that granted the request.
Against that sentence, appeals were filed by the four opponents.
[a summary of the arguments that were presented by the four opponents to follow]
 

II - Legal basis and Reasons
The following facts were proved:

From the injunction request 
1 - On the 24th of July, 2008, the first defendant published in Portugal, under edition of the second Defendant, the book that he is the author of, Maddie The Truth of the Lie.
2 - In that book, the first defendant defends the thesis that:
1) The child Madeleine McCann died in the Ocean Club Apartment, in Vila da Luz, on the evening of the 3rd of May, 2007;
2) The simulation of an abduction took place;
3) Kate Healy and Gerald McCann are suspected of involvement in the concealment of their daughter's cadaver,
4) The death may have been the outcome of a tragic accident;
5) There are indications of neglect regarding the guardianship and security of the children.
3 - The aforementioned book attained 4 editions until the end of July, 2008, 9 editions until the end of August, 2008, and 12 editions until the end of September, 2008.
4 - Each edition was comprised of approximately 10.000 copies.
5 -The book is presently sold out at practically all points of sale.
6 - When the book was published, the first Defendant gave interviews to all the media that requested him to do so, namely RTP, and in those interviews he defended the thesis that he presents in the book.
7 - The first defendant also gave, among others, an interview to Correio da Manhã newspaper, which was published in their edition of the 24th of July, 2008, where he defended the thesis that he presents in the book.
8 - At the beginning of the month of May, 2009, the same book was published in France, now under the title Maddie, L'Enquête interdite: Les révélations du commissaire portugais chargé de l'enquête.
9 - The first defendant gave countless interviews to several media in France, including the one that was published by newspaper Le Parisien and its corresponding website.
10 - In those interviews, the first defendant once more mentioned the thesis that he presents in the book.
11 - The book's French edition was and is systematically and profusely published on the internet, at least at: [a list of websites follows - including this blog]
12 - Between the date when the Portuguese edition was published, on 24th June, 2008, and the date of the book's French edition, in May 2009, the fourth defendant broadcast a television programme which was produced by the third defendant, that reserved to itself the ownership of the corresponding rights.
13 - The first emission of that television programme took place on the 13th of April, 2009.
14 - The second emission of that television contents took place on the 12th of May, 2009.
15 - That TV programme was broadcast in Portugal at least on those two occasions.
16 - The same TV programme/video is intrinsically based upon the contents of the book Maddie The Truth of the Lie.
17 - In the video in question, the first defendant once again sustains his theory that the Third applicant is no longer alive, that her death occurred within the Ocean Club apartment and that her parents, the first applicants, concealed the cadaver of their daughter.
18 - At least two million two hundred people viewed the first broadcast of this TV programme.
19 - At the end of April 2009, the DVD corresponding to this programme began to be commercialised, with the title and subtitle of Maddie : What Lies Beneath the Truth - A powerful documentary based on the best seller Maddie - The Truth of the Lie by Gonçalo Amaral.
20 - 75.000 copies of this DVD have already been distributed for sale.
21 - The DVD is published, at least, on the web site of the Third Defendant.
22 - The first applicants are married to each other and are the parents of the third, fourth and fifth applicants.
23 - During the Criminal Investigation in which the first applicants were constituted arguidos, the archiving dispatch was issued, referring to them on pages 145-173, dated 21st July 2010.
24 - Madeleine Beth McCann has been missing since the of 3rd May, 2007.
25 - Curricular articles were divulged on the Internet relating to the first defendant, that spoke of him as a correct, structured, sociably adept man, namely to perform political roles.
26 - The first defendant is a person much mentioned in the press.
27 - The curricular information previously referred to (point 25) reveals a man who studied engineering, graduated in legal and criminal sciences and who was an officer/inspector of the PJ for 27 [sic] years.
28 - The first defendant knows the significance and scope of an archiving dispatch in a criminal case.
29 - The first defendant knows who holds power over an investigation, who can open or re-open it and under which circumstances.
30 - The first defendant knows what defamation and slander mean.
31 - The first defendant knows what it means not to be at the service of a criminal investigation.
32 - The first defendant has professional experience and is an adult.
33 - With the divulgation of his theory about the events of May 3, 2007 in Praia da Luz, the first defendant, with the help of the three other defendants, saw himself being promoted and earned money.
34 - The first defendant had pretensions to intervene in local political life.
35 - The defendants aim to divulge the book and DVD around the world, gaining financially, commercially and socially, which deepens the suffering of the first two applicants and makes the searches for the third applicant difficult.

From the oppositions
1 - The defendant was the coordinating inspector of the Maddie Case investigations from the 3rd of May, acting in this quality, within the scope of Inquest process No 201/07.0GALGS of the Lagos Public Ministry Services, until the date when he was withdrawn from the case, on the 2nd of October, 2007.
2 - He retired from service on the 1st of July, 2008.
3 - On the date that he was withdrawn from the case, it was of the defendant's knowledge that some of the investigators had formulated the opinion that Madeleine McCann had died in the apartment, that a simulation of abduction occurred and that her parents were suspected of concealing a cadaver.
4 - The investigation activities that the first defendant reports in the book and in the documentary are contained in the investigation process.
5 - The investigation process was made available in electronic format, namely to the national and international media, who proceeded to divulge it, thereby enabling knowledge, comments and public and universal discussion of it.
6 - Any person can have access to these facts and to the documents of the investigation process in which they were verified, on the internet, only a "click" away.
7 - The witness friends of the first applicants did not make themselves available to appear in Portugal for a diligence of reconstruction of facts, as was determined by the dispatch from the Prosecutor's Office, on pages 4636 to 4638 of Volume XII of the Investigation.
8 - Under the terms of the editorial contract, relating to the book Maddie - The Truth of the Lie, signed with the first Defendant, the author's rights of ownership were temporarily ceded to the second defendant, only with regards to the editing of the book.
9 - The book was published, through other editors, in some countries (apart from France) as pointed out under item 8 of the provisional injunction, as follows:
. In Spain, in September 2008, with the title Maddie - La Verdad de la Mentira, with eventual commercialisation in Castilian language into Latin American countries.
. In Denmark, in November 2008, with the title Maddie - Sandheden on Lognem, with eventual commercialisation in other Nordic countries.
. In Italy, in December 2008, with the title Maddie - La Verita della Menzogna, with commercialisation in the Italian language throughout the world.
. In Holland, in April 2009, with the title Maddie - De Waarheide Achter de Leugen, with commercialisation in the Dutch language throughout the world.
. In Germany, in June 2009, with the title Maddie - Die Wahrheit über die Lüge, with commercialisation in Austria and Switzerland.
10 - There is an English version circulating on the internet, on the web site where a Portuguese version can also be found.
11 - On their web site (www.etc), the first applicants cite the theory of the first defendant.
12 - The daily newspaper Correio da Manhã, in its edition of 3rd October 2007, published a supplement with the title Maddie, The Diary of a Mystery.
13 - By means of the fund that was created by the first applicants, diligences that are considered to be opportune are being made in order to obtain leads about what happened to and to discover the whereabouts of the third applicant.
14 - During the first trimester of 2008, VC Filmes learned that the first Defendant was writing a book, the publication of which would take place during the first semester of that same year, with an objective and factual description and the revelation of elements, at the time un-published, of the investigation into the disappearance of Madeleine McCann which he had led.
15 - VC Filmes expressed their interest to the first defendant for an audiovisual adaptation (documentary and fiction) of said book.
16 - And with him [G. Amaral], an agreement was made for ceding the exclusive rights in their [VC Filmes] favour for the adaptation of a book into a documentary or fiction that could have the format of a book for cinema or a telefilm for television and which should be explored on all platforms and on all kinds of media.
17 - The author of the book agreed to participate as narrator of the documentary.
18 - And he ceded to VC Filmes all the ownership of author's rights and connected rights that belonged to him as author and narrator, namely for effects of the exploration by VC Filmes of the documentary by all methods and by all means.
19 - VC Filmes ceded to the fourth defendant the rights of television broadcast or transmission in Portugal of the audio visual documentary entitled Maddie – The Truth of the Lie, produced by them.
20 - And, as happens with all other cinematographic and audio visual works produced by VC Filmes, the latter ceded to its distributor Valentim de Carvalho Multimedia, S.A., namely the rights of edition and distribution of the documentary for publication in video format, thereby making themselves their representative as regards the exploration or commercialisation of the rights of television broadcast or transmission of this documentary in foreign countries.
21 - Valentim de Carvalho Multimedia in representation of VC Filmes, ceded the rights of television broadcast or transmission of the same documentary to television stations in Spain, Andorra, France, (Flemish) Belgium, Denmark and Poland, on dates previous to the notification to VC Filmes of the decision presented in this injunction.
22 – Until that same date, the documentary in question was reproduced only once in order to be edited, published and sold in Portugal, in video format, in this case a DVD.
23 - Neither Valentim de Carvalho Multimedia nor VC Filmes had ceded any rights of edition or author's rights concerning the content of the same documentary (or the video that reproduces it) for publication in any other part of the world.
24 - The reproduction and editing were authorised by Valentim de Carvalho Multimedia to the company Presslivre, Imprensa Livre, S.A., owner of the newspaper Correio da Manhã by means of a contract established between both parties, under which terms, the DVDs, their covers and packaging would be produced on account, by order and under the responsibility of Presslivre, to be distributed and commercialised jointly with the newspaper Correio da Manhã.
25 - And the entire process of registration and classification of the video edition (DVD) of the documentary at IGAC would be, as it was, developed by Valentim de Carvalho Multimedia, the costs of which process would be covered by Presslivre, as indeed was done.
26 - 75.000 DVD units were produced for said edition.
27 - The respective distribution for sale took place together with a distribution for sale of the edition of the newspaper Correio da Manhã on the 24th of April, 2009.
28 - Only a small number of the DVDs distributed was effectively sold, 63.369 units having been returned to Presslivre.
29 - The investigation files were made available in electronic format, namely to the national and foreign press, which disseminated it, enabling it to become known and to be publicly and universally commented upon and discussed.
30 - Anyone has access to those facts and to the documents from the investigation process in which they were verified, on the internet, at the distance of a "click".
31 - The documentary was published and sub-titled in English, by third parties who published it on the internet, without the knowledge and against the will of VC Filmes.
32 - The first two Applicants, in collaboration with British television station "Channel 4" also produced a documentary about the disappearance of the third Applicant in Praia da Luz in May 2007, which expressed their version of the events.
33 - This audio visual piece, titled Still Missing Madeleine and which corresponds to a documentary, with a duration of 60 minutes, was subject to a preliminary licensing agreement by Mentorn International to TVI, for the Portuguese territory, with an exclusivity duration for the period between 7th May 2009 and 6th May 2010.
34 - This agreement even began to be negotiated before the first screening by the defendant [TVI] of the documentary based upon the book of the first defendant, and was duly reduced to a written text, in the form of a deal memo (business deal), which was signed by both parties on 15th April 2009.
35 - "TVI" programmed the screening of this documentary with the version of the applicants, in such a manner as to complement the showing of the documentary based upon the book by the first defendant, seeking by acting in this way, to clarify the public in an unbiased way, showing various versions and possible explanations for the same facts.
36 - On 23rd April 2009, TVI was informed by telephone that Mentorn was not going to comply with the preliminary licensing agreement in question, which was confirmed in writing, on 5th May 2009.
37 - The reason why Mentorn was not going to comply with the agreement in question was that the McCann family had given instructions that they did not want the programme to be licensed to TVI.
38 - The documentary that reports the version of facts defended by the applicants was screened on 12th May 2009 by SIC (TV channel), with the title Maddie – two years of anguish, having been previously been broadcast in the UK.
39 - In that documentary, an explanation is given, with the help of private detectives, of the version of facts defended by the applicants and a re-construction of the night of the disappearance of Madeleine McCann is made.
40 - The first applicants have easy access to national and international press, having given an interview to the American television programme Oprah, presented by the well known Oprah Winfrey and which had already been shown in Portugal, also by SIC, on 4th May 2009 and again on 12th May.
41 - That programme was transmitted throughout the entire world by means of available satellite signals and cable networks.
42 - In this interview the first applicants once again explained their theory about the fateful events of the night of 3rd May 2007 and once again launched an appeal for her search, revealing new facts about the private investigations that they hired.
43 - In the documentary presented by SIC, the first applicants revealed the existence of at least one more witness statement, re-constructions and photo fits that reinforce the abduction theory.


Suite ici

(1) Cet argument sera repris par la Cour d'Appel devant statuer sur la sentence de 04.2015. Il y figurera non comme fondamental, mais comme signant l'absurdité de la situation.