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The attachment
is not the full transcript of the court hearing, but appears
to be the judge's summation of what was presented to her
(allegations by the five plaintiffs - the five members of
the McCann family) for a 'cautionary proceeding' against
four respondents (the author (GA), the publisher, the video
maker, and the TV station) for violation of various personal
rights of the plaintiffs due to the publication of the book
(A Verdade da Mentira) and the video based upon it.
It appears to contain a recapitulation of the essential
parts of what was presented to her, a legal analysis and a
decision based upon that analysis, but the starting point is
the judge's opinion on various 'matters of fact' that she
was asked to consider.
Most of those points pertained to facts about the author and
other respondents, but the critical judgement is that, in
the hearing, based on documents submitted and the
depositions of five unidentified witnesses - I do not know
if they were actually present in court, but it is possible -
it was proved that the respondents intended to broadcast the
book and the DVD world-wide for financial, commercial and
social gain, [thereby] deepening the suffering of the
parents and making more difficult the search for the missing
child.
That appears to be the nub of the matter before the court.
The essence of the five witness depositions is given as:
- witnesses 1 to 4 expressed personal opinions, deductions
and convictions [I read this as meaning that what they had
to say could not be proven by empirical measurement];
- but they did reveal first-hand knowledge of the growth in
difficulties and obstacles to the search for the missing
child that arose from each new edition of the book, news of
a new edition, interviews by the author, and broadcast of
the DVD;
- the 3rd and 4th witness depositions, in particular,
demonstrated the intensification of the suffering of the
parents that arose from each new promotion of the
proposition [thesis] of the author - whether through the
book, DVD or interviews - and its repercussions on the
search, and the potential for the twins to gain knowledge of
it.
- the 5th witness essentially provided evidence on the
extent of the publications around the world.
====
The above is my understanding of the CONCLUSION in the first
five pages
The section headed RELATÓRIO (Report) on pages 6 through 11
appears to reflect the
allegations, requests and matters of fact presented by the
five plaintiffs.
The section headed 'DE DIREITO' on pages 11 through 15
appears to be the judge's legal analysis, albeit that some
parts may have come directly from the legal argument
presented by plaintiff counsel, but that would not be
unusual if such argument was pertinent and well-phrased.
In the analysis, the conflict between fundamental rights of
freedom of expression and freedom of the press on the one
hand versus the personal rights of the plaintiffs on the
other was determined in favour of the plaintiffs [the
McCanns]. That, to me, is the essential judgement.
The crux appears to be that the judge had to [had no option
other than to ] conclude that the proposition by the author
(and promoted by the other respondents) that the parents had
been involved in criminal acts, even negligence, had not
been proved in the inquiry that is now archived, and so, for
purposes of this particular hearing, the fundamental legal
rights of the respondents have to give way to the
fundamental legal rights of the plaintiffs.
====
That brings us to the DECISION on page 15.
As we get to the DECISION there are two important things to
note:
- this hearing
is NOTHING to do with defamation or libel - which is the
Principal Action to be heard at some date in the future. It
limited itself to deciding which of two sets of fundamental
rights in Portuguese Law should hold sway in the specific
circumstance presented, which circumstance was that each
rendition of the proposition of a dead child and the hiding
of her body impeded the search for a live child, and this
impediment caused additional suffering to the parents who
are behind the conduct of that search.
The request
was made solely to stop further renditions of that
proposition in its various forms.
- the actions requested by the plaintiffs were not granted
in the manner they wanted; they were all modified in
execution.
The requested actions are shown as a) through f) on page 7,
while the DECISION is shown, in the same order and
lettering, on pages 15 and 16.
a) requested the unqualified prohibition of the sale of the
book and video and that all
remaining copies held in book stores and warehouses be
collected and destroyed.
The DECISION modified this to the RESPONDENTS being
prohibited from selling the remaining [unsold] books and
videos held in book stores and warehouses, and that those
[unsold] copies be collected and delivered to a depository
[i.e. for safe-keeping, not for destruction];
b) requested the unqualified prohibition of new editions of
the book and of the video, or other books and/or videos,
that defend the proposition [of illegal acts on the part of
the parents], and that are aimed at distribution/publication
in Portugal;
The DECISION modified this to the RESPONDENTS being
prohibited from doing those
requested things;
c) requested the unqualified prohibition of transferring
rights of publication and of authorship over the contents of
the book or of the video, or of other books and videos of
the same proposition, for publication anywhere in the world;
The DECISION modified this to the RESPONDENTS being
prohibited from transferring such rights [that they hold];
d) requested the unqualified prohibition of citation,
analysis or express commentary, verbal or written, of parts
of the book or of the video that defend the proposition of
the death of the [missing child] or of the hiding of her
body, by [the parents].
The DECISION modified this to the RESPONDENTS being
prohibited from the citation, analysis or express
commentary, verbal or written, of parts of the book or of
the video that defend the proposition of the death of the
[missing child] or of the hiding of her body by [the
parents].
NOTE: there is a comma omitted in the DECISION after the
word 'body'(corpo), that causes the death to be
distinguishable [separable] from the hiding of the body by
the parents
e) requested the unqualified prohibition of the reproduction
or commentary, opinion or
interview in which such proposition is defended or may be
inferred.
The DECISION modified this to the RESPONDENTS being
prohibited from such actions;
f) requested the unqualified prohibition of the publication
of declarations, photographs, or other documents allegedly
connected with such book and video or such proposition.
The DECISION modified this to the RESPONDENTS being
prohibited from such actions.
=====
In ALL respects, therefore, the RESPONDENTS are prohibited
from doing certain things, but in the DECISION there is no
attempt to prohibit other people from doing those things -
provided, of course, that they do them within the scope of
their own legal rights (and duties).
I would suggest, however, that any argument, opinion or
comment as to the possible death of the missing child, or to
the hiding of the body under such a circumstance, does not
use either the book or the video as a foundation; rather, it
should look to the content of the official case file.I
reiterate that, in my understanding of it, this is not a
judgement on defamation or libel, and my understanding of
this is reinforced by the penultimate line
(the last
sentence on page 16)
which states that costs are borne by the plaintiffs pending
the principal action, i.e. the principal action - namely on
the question of defamation and libel - is yet to come.
There is no pronouncement by the judge on the libellous-ness
or defamatory-ness of the book or of the video.
Finally on page 16, the depository for the unsold copies of
the books and videos was
nominated as being the counsel for the plaintiffs. I do not
see any reference to ANY rights - including those of
publishing and/or authorship -
being transferred to that person, nor to any other person,
as part of this decision. All such rights, therefore, would
remain vested in the holders thereof at the time of this
judgement. If this were not the case then request/decision
c) above would be totally redundant.
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