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Title: Alby's Analysis of the Court Document - Sept 9 2009
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TinLizzy
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(Date Posted:09/03/2011 2:44 PM)
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http://www.gerrymccannsblogs.co.uk/Carter-Ruck.htm
Alby's Analysis of the Court Document

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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Portuguese court documents
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(Message edited by TinLizzyOn09/03/2011 2:47 PM)
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