Defamation Law - I think....

Defamation law in the UK, according to our friends, Carter Ruck:

Defamation is the publication to a third party of a statement which damages the reputation of the complainant. 

Their info continues:

There is no set definition of 'defamatory'. A statement may be considered to be defamatory if it tends to do any one of the following:

• lower the claimant in the estimation of right-thinking members of society generally;
  
• disparage a claimant in his business, trade, office or profession;
  
• expose the claimant to hatred, ridicule or contempt; or
  
• cause the claimant to be shunned or avoided.
  
  

Whether or not a statement has that effect is measured against the standard of the reasonable man generally and not a limited class of people who may have different standards from the majority of members of society.

Common examples of what may be considered defamatory are allegations that suggest a person is:

• Immoral
  
• Dishonest
  
• Corrupt
  
• Insolvent or in serious financial difficulties
  
• Incompetent
  
• Guilty of a criminal offence
  
• The producer of shoddy goods
  
  

So let's say the McC's complaint is that GA's book makes allegations that suggest the McCs are at least 4 of the above and that these 'defamatory' allegations have damaged their reputations (as honest parents of an abducted child) and this has damaged the chances of anyone believing that their child is findable.

One of the main defences available to GA is 'Honest comment'.

Carter Ruck state the following:

To succeed in the defence of honest comment the defendant must show that the comment:

• is on a matter of public interest;
  
• is recognisable as comment, as distinct from an allegation of fact;
  
• is based on facts which are true (or protected by the defence of privilege);
  
• is on a matter which has been expressly or implicitly put before the public for judgment, or is otherwise on a matter with which the public has a legitimate concern; and
  
• must explicitly or implicitly indicate, at least in general terms, the facts on which it is based (i.e. what it is that has led the commentator to make the comment).
  
  

[url=http://www.carter-ruck.com/Media Law/Questions_And_Answers.asp]http://www.carter-ruck.com/Media%20Law/Questions_And_Answers.asp[/url] 


Can anyone please explain the differences (if any) between Portuguese defamation law and the UK version?

Really sorry about the ludicrously unhelpful spacing in my post above, but it just wouldn't behave itself.

That is a bit of useful research, Wintabels... I wonder if the same applies to Portuguese law. I always understood that the UK is the libel capital of the world, and that in Europe the law is more balanced between libel plaintiff and freedom of speech. We shall see... we shall see...

I haven't read Kate McCanns book. But I've seen excerpts out of it. And it doesn't show her in a very good light at all. That dreadful bad language for instance.

The trial is taking place in Portugal and regulated by Portuguese laws so discussing UK libel laws in relation to the trial is IMO a waste of time. Once again, I would like to point out that the onus is on the plaintiff to prove that he/she has been libelled or suffered damages.

Carolina wrote:The trial is taking place in Portugal and regulated by Portuguese laws so discussing UK libel laws in relation to the trial is IMO a waste of time. Once again, I would like to point out that the onus is on the plaintiff to prove that he/she has been libelled or suffered damages.

 
But surely the same is the case in the UK, Carolina: (my bold)
 
http://www.carter-ruck.com/Media%20Law/Questions_And_Answers.asp
 
What must a person or company prove in a libel or slander action?
When an individual or company brings a libel or slander action, they must show:
 
that the words are defamatory of them;
that the words would be understood to refer to them by even one other person; and
that the words have been published to a third party.
 
A libel claimant does not have to prove that the words are false or to prove that he has in fact suffered any loss. Damage is presumed.

Perhaps, Carolina, you mean that in Portugal the onus is on the plaintiff to prove that the libel is false? If so, that would be interesting.... it would mean that the McC's would have to prove that they didn't neglect their children, that Madeleine didn't die accidentally and that they didn't fake an abduction.

I do agree you have said that before, Carolina, but I am not sure what would constitute proof and how it would be arrived at.
I can't see how KM could or would achieve this, certainly not by this 'his book made me miserable and stopped the search for MBM' I don't doubt the first part of that, but the second is untrue, and anyway it isn't part of libel/defamation.

I can't honestly see how she has a case at all. She is saying: 'I didn't hide a body and GA has libelled me by saying I did'. Effectively, there are two theories, neither of which has full solid proof... GA's, with a great deal going for it, but maybe just not quite enough for watertight proof in a court case... hence the ongoing shelving... and KM's, which is just her say so on the disappearance of her daughter, with nothing much at all to back it up.

Wintabells wrote:

Carolina wrote:The trial is taking place in Portugal and regulated by Portuguese laws so discussing UK libel laws in relation to the trial is IMO a waste of time. Once again, I would like to point out that the onus is on the plaintiff to prove that he/she has been libelled or suffered damages.

 
But surely the same is the case in the UK, Carolina: (my bold)
 
http://www.carter-ruck.com/Media%20Law/Questions_And_Answers.asp
 
What must a person or company prove in a libel or slander action?
When an individual or company brings a libel or slander action, they must show:
 
that the words are defamatory of them;
that the words would be understood to refer to them by even one other person; and
that the words have been published to a third party.
 
A libel claimant does not have to prove that the words are false or to prove that he has in fact suffered any loss. Damage is presumed.

No, no and no. It is not the same as in the UK, quite the opposite. Here in Portugal, the libel claimant has to prove that he has been libeled and suffered damages, it is not presumed. The burden of proof is not on the respondant and this is the case in most countries except the UK. In this trial it is almost impossible for the McCanns to constitute proof that they have suffered from the book. Gonçalo does not have to solve the crime in order to win the trial, all he has to do is confirm that the contents are based on the criminal investigation carried out by the PJ and that the conclusions were not something he imagined out of thin air. And these same conclusions can be read in the police files made public in 2008.

thanks Caroline for clearing that up for us once again. I agree no point in taking about UK law. its something I think some forget. its Portugal and Portuguese Laws that reign not what happens in the UK.

Carolina wrote:

No, no and no. It is not the same as in the UK, quite the opposite. Here in Portugal, the libel claimant has to prove that he has been libeled and suffered damages, it is not presumed. The burden of proof is not on the respondant and this is the case in most countries except the UK. In this trial it is almost impossible for the McCanns to constitute proof that they have suffered from the book. Gonçalo does not have to solve the crime in order to win the trial, all he has to do is confirm that the contents are based on the criminal investigation carried out by the PJ and that the conclusions were not something he imagined out of thin air. And these same conclusions can be read in the police files made public in 2008.

Hi Carolina. Sorry that you feel that it's a waste of time to talk about UK libel law in relation to the trial in Portugal, but I'm trying to learn about the differences between the two systems and where there may be similarities.

You say above that in Portugal the libel claimant has to prove that he has been libeled (I presume you mean defamed) and has suffered damages. In the UK, as I said, it is also a requirement that the claimant has to demonstrate that they have been defamed (so I'm not sure why your response is 'no' to this) although in the UK they do not have to prove that the words were false or that damage has been caused.

As in Portugal, one of the main defences to an accusation of defamation under the UK system, is 'Justification' - i.e. that the words are basically true (as you've said - they are based on the material in the police files) and another defence is that the words are 'honest comment' based on facts which are true (i.e. the facts of the police investigation) on a matter of public interest. Again, I don't understand your 'no' response here either.

This case, as I understand it, is one of defamation, so the McC's must be accusing Mr Amaral of defaming their reputation in his book and in doing so, negatively affecting the search to find their child and causing all kinds of suffering to the family in general. This, I suppose, is what you mean by 'proof that they have suffered from the book' - something you say is 'almost impossible'. But surely it is the defamation the claimants are required to prove (in Portugal) before they can begin to prove the 'suffering' it has caused... and surely this would require that they prove that their behaviour did not justify the hypothesis that Madeleine was neglected, fatally injured and that her abduction was staged, i.e. the material they're claiming is defamatory?

If it is too time-wasting to address any of my points, do feel free to ignore them... perhaps other forum members may wish to continue to wrestle with and discuss these complicated issues?

I don't think the issue is complicated. what is complicated is trying to compare UK libel laws with Portuguese Law. I don't understand the relevance of comparing Libel Law in the Uk with Libel Law in Portugal when the UK law has no bearing on what happens in Portugal. I can appreciate Panda that you may wish to compare the two, but comparison doesn't change differences or similarities. Portuguese law reigns in this case regardless of what is UK libel law.

Carolina - that is crisp and clear, I knew the UK was the odd one out on libel amongst all nations, and that the law was likely that way in Portugal. If that description is so, and you make it pretty clear, how do KM and co believe they have a hope in hell of winning? Seems to me GA has no case to answer. Do you think advice to that effect from UK lawyers who know what Portuguese libel law says made the Mccanns try to wriggle out of their oh-so -inadviseable libel case once started, by means of an out of court settlement?

tanszi wrote:I don't think the issue is complicated. what is complicated is trying to compare UK libel laws with Portuguese Law.  I don't understand the relevance of comparing Libel Law in the Uk with Libel Law in Portugal when the UK law has no bearing on what happens in Portugal.  I can appreciate Panda that you may wish to compare the two, but comparison doesn't change differences or similarities.  Portuguese law reigns in this case regardless of what is UK libel law.

Hi Tanzi

It is me who is trying to understand how libel laws work in Portugal and asking for help with this. I don't think Panda has posted on this thread.

I'm not suggesting that comparison of the UK and Portuguese systems will change the differences or similarities, nor questioning which law will reign in this case. I'm merely trying to understand the process better.

comperedna wrote:Carolina - that is crisp and clear, I knew the UK was the odd one out on libel amongst all nations, and that the law was likely that way in Portugal. If that description is so, and you make it pretty clear, how do KM and co believe they have a hope in hell of winning? Seems to me GA has no case to answer. Do you think advice to that effect from UK lawyers who know what Portuguese libel law says made the Mccanns try to wriggle out of their oh-so -inadviseable libel case once started, by means of an out of court settlement?

how do KM and co believe they have a hope in hell of winning? Seems to me GA has no case to answer.

This is exactly what I have been realising and why I have been asking for information about libel law in Portugal.

so sorry Wintabells and apologies to Panda to.

tanszi wrote:so sorry Wintabells and apologies to Panda to.

no probs, tanszi :)

I put a query on Joana's site to try and find out a bit more about Portuguese libel law.

I also put a query on to ask for a decent translation of 'diligences' which keeps cropping up in online translations. I got a very helpful response from guerra, who like Astro, does a lot of translation work. 'Diligences' doesn't have an exact translation in English in a single word, but when you read 'diligences' are being prepared it means what I had kind or gathered from the context: 'detailed lists of things to be investigated, a list of things to be done, plans for action on these matters' etc