European Court Of Human Rights Unanimously Ruled Against The Parents Of The Missing Madeline McCann

Recently, the European Court of Human Rights (ECtHR) unanimously ruled against the parents of the missing Madeline McCann in their challenge against Portugal in relation to the conduct of their libel case.

Background

The case originated from a book written in 2008 by a former Portuguese police officer, Goncalo Amaral, who investigated Madeline McCann’s disappearance. In the book, titled “Truth of the Lie”, Amaral insinuated that the McCanns had been involved. The McCanns thus sued Amaral for libel. A Portuguese Court initially ruled in the parents’ favour in 2015 but the Portuguese Supreme Court of Justice reversed the ruling in 2016. The McCanns then appealed to the ECtHR against Portugal claiming that the Portuguese authorities had violated their right to private and family life, right to a fair trial and right to be presumed innocent.

Of particular interest is the ECtHR’s treatment of the right to private and family life under Article 8 of the European Convention of Human Rights in the context of defamation. The ECtHR placed emphasis on the extensive publicity and the McCanns’ own participation in media interviews and documentary programmes.

The ECtHR stated, whilst understanding that the book’s publication had undeniably caused anger, anguish and distress to the McCanns, it did not appear that the book had a serious impact on the parents’ social relations or on their attempts to find their daughter.

The ECtHR further highlighted that even assuming that the McCanns’ reputation had been damaged, this was not because of the argument put forward by the book’s author but, rather, as a result of the suspicions expressed against them, which had led to them being investigated and to intense media attention. The information had thus been brought to the public’s attention in some detail even before the book was published. It followed that the Portuguese authorities had not failed to protect the McCanns’ right to private life.

The ECtHR also stated that the McCanns’ right to a private and family life has to be balanced against Amaral’s right to freedom of expression, in line with the Portuguese Supreme Court’s ruling in 2017.

Comment

This decision demonstrates the complexity of the law on defamation.

First, the nature of potentially defamatory statements is to be considered in the whole context in which those statements are published and received, and not just their wording and meaning on the face of it. The Court can look at other related statements in the same publication, and can even go further to look at circumstances in which the statement was made, in order to ascertain how the statement would be understood by right-thinking members of society. Damage to reputation, while necessary, is not determinative of whether a statement is defamatory.

Secondly, the Court will balance individual rights against freedom of expression, especially when public figures are involved. English defamation law provides a defence of an honest opinion. Proof by the defendant that the statement made is one of opinion honestly held, based on true facts, is a good defence. The defendant does not have to prove the truth of every fact relied on by the opinion, as long as the opinion was fair in relation to those facts and an honest person could have had that opinion based on those facts. This means that even if someone utters statements that may damage a person’s reputation, as long as it falls within the honest opinion defence, there is no sustainable claim in defamation.

A claim in defamation requires extensive review of relevant materials and in-depth analysis; failure to plead a case properly and adequately can lead to substantial legal costs being thrown away. It is therefore important to seek specialist legal advice if you are contemplating an action. For more information, please contact our dispute resolution team.