Publication of a book and documentary by an inspector who dealt with a case of the disappearance of a minor. The parents are suspected of staged kidnapping. No violation of private and family life
JUDGMENT
McCann and Healy v. Portugal 20.09.2022 (app. no. 57195/17)
SUMMARY
The case concerned statements made by a former detective inspector – in a book, a documentary
and a newspaper interview – about the applicants’ alleged involvement in the disappearance of their
daughter, Madeleine McCann, who went missing on 3 May 2007 in southern Portugal. Before the
Court, the applicants alleged that there had been a violation of their right to reputation and to their
right to be presumed innocent.
The Court considered that, even assuming that the applicants’ reputation had been damaged, this
was not on account 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 their being placed under investigation in the
course of the criminal investigation (the prosecutor’s office decided to take no further action in July
2008) and had led to intense media attention and much controversy. The information had thus been
brought to the public’s attention in some detail even before the investigation file was made
available to the media and the book in question was published. It followed that the national
authorities had not failed in their positive obligation to protect the applicants’ right to respect for
their private life.
The Court also considered that in the Supreme Court’s judgments of January and March 2017 –
concerning the civil claims lodged by the applicants – it had not made comments implying any guilt
on the part of the applicants or even suggesting suspicions against them with regard to the
circumstances in which their daughter had disappeared. The applicants’ complaint concerning their
right to be presumed innocent was thus manifestly ill-founded.
PROVISION
Article 6 par. 2
Article 8
PRINCIPAL FACTS
The applicants, Gerald Patrick McCann and Kate Marie Healy, are British nationals who were both
born in 1968. They live in Leicestershire, in the United Kingdom.
In May 2007, while the applicants were on holiday with their three children in southern Portugal,
their daughter Madeleine McCann, then aged three, disappeared. On the following day an
investigation was opened by the prosecutor’s office, whose lines of enquiry focused on a probable
abduction. The investigation was entrusted to Inspector G.A. from the criminal investigation
department.
Biological and blood samples were subsequently detected by British sniffer dogs inside the holiday
apartment and in the trunk of a vehicle that the applicants had rented a few days after their
daughter’s disappearance. As a result, the parents were placed under investigation in September
2007. They were suspected of having hidden their daughter’s body following her death, possibly as a
result of an accident inside the apartment, and of having staged an abduction. Those proceedings
were discontinued in July 2008.
In the meantime, in October 2007, Inspector G.A. was removed from the investigation. He retired in
July 2008. In the same month he published a book in which he alleged, among other claims, as
follows: “Madeleine McCann died inside the apartment; an abduction was staged; death could have
occurred following a tragic accident; evidence proved negligence on the part of the parents with
regard to the care and safety of the children”. G.A. also gave a newspaper interview in which he
repeated his theory. The book was subsequently adapted as a documentary programme, which was
made commercially available from April 2009.
In consequence, the applicants brought interlocutory civil proceedings in Portugal, seeking an
injunction to have the book and documentary banned, and the seizure of G.A.’s assets.
They then lodged civil actions against the author of the book (G.A.), the publisher, the production
company which had made and marketed the documentary, and the television channel which had
broadcast it. These were dismissed by the Portuguese courts. In particular, the Supreme Court
delivered two judgments, on 31 January and 21 March 2017 respectively, in which it considered that
there had been no unlawful interference with the applicants’ right to their reputation and that the
principle of the presumption of innocence was not relevant to the case. It also noted that the
statements made by G.A. had not been new, since they were set out in a police report of
10 September 2007, itself contained in the investigation file, to which the press had been given
access. It further held that these statements, which had thus already been widely commented and
discussed, represented a subject of public interest, and that the applicants, who had deliberately
sought media coverage, had to be regarded as “public figures”, who were as a result inevitably
subjected to more attentive scrutiny of their every word and deed.
THE DECISION OF THE COURT…
Article 8
The Court noted that the contested statements made by G.A. in the book, documentary programme
and interview concerned the applicants’ alleged involvement in hiding their daughter’s body, based
on an assumption that they had staged an abduction and on a presumption of negligence towards
her. In the Court’s view, these statements were sufficiently serious to render Article 8 of the
Convention applicable.
It further noted that the book, the documentary based on it and the interview given by G.A. to a
daily newspaper concerned a debate of public interest. It considered that the contested statements
constituted value judgments which had a sufficient “factual basis”. Indeed, the elements on which
the scenario advanced by G.A. was based were those which had been gathered during the
investigation and had been brought to the public’s attention. Additionally, this theory had been
entertained in the context of the criminal investigation and had even led to the applicants being
placed under investigation on 7 September 2007. Furthermore, the criminal case had attracted
extensive public interest both nationally and internationally and had given rise to considerable
discussion and controversy. As the Lisbon Court of Appeal and the Supreme Court had noted, the
disputed statements had undeniably formed part of a debate of public interest, and G.A.’s theory
had accordingly been one of several opinions.
It also noted that the criminal case had been discontinued by the prosecutor’s office on 21 July 2008.
In this connection, the Court held that, had the book been published before the decision by the
prosecutor’s office to discontinue the proceedings, the statements in question could potentially
have undermined the applicants’ right to be presumed innocent, guaranteed by Article 6 § 2 of the
Convention, by prejudging that entity’s assessment of the facts. Given that the statements were in
fact made after the case had been discontinued, it had been the applicants’ reputation, guaranteed
by Article 8 of the Convention, and the public’s perception of them, which had been at stake.
In the present case, the Court nevertheless considered that, even supposing that the applicants’
reputation had been damaged, this had not been on account of the hypothesis put forward by G.A.,
but as a result of the suspicions expressed against them, which had led to their being placed under
investigation in the course of the proceedings and had given rise to extensive media attention and
much controversy. The information had been thus brought to the public’s attention in some detail
even before the investigation file had been made available to the media and the book in question
had been published.
With regard to the applicant’s allegations of bad faith on G.A.’s part, the Court noted that the book
had been published three days after the proceedings had been discontinued, which implied that it
had been written, then printed, while the investigation had still been underway. The Court held that,
in choosing to make the book available for sale three days after it had been decided to discontinue
the case, G.A. could, as a matter of prudence, have added a note informing the reader about the
outcome of the proceedings. However, the failure to insert any such note could not, in itself, prove
bad faith on his part. The Court noted that the documentary did refer to the fact that the case had
been discontinued.
Furthermore, the applicants had continued their media campaign after the book’s publication. In
particular, they had cooperated in a documentary programme about their daughter’s disappearance and continued to give interviews to the international media. While the Court understood that the book’s publication had undeniably caused anger, anguish and distress to the applicants, it did not appear that the book, or the broadcasting of the documentary, had had a serious impact on the
applicants’ social relations or on their legitimate and ongoing attempts to find their daughter.
The Court also specified that while, admittedly, the statements in question were based on G.A.’s indepth knowledge of the case file as a result of his role, there was no doubt that their content had already been known to the public, given the extensive media coverage of the case and the fact that the investigation file had been subsequently made available to the media after the investigation had
been closed. For that reason, it held that the contested statements were merely the expression of
G.A.’s interpretation of a high-profile case which had already been widely discussed. In addition, it
did not appear that G.A. had been motivated by personal animosity towards the applicants.
Lastly, the Court shared the Government’s opinion as to the chilling effect that a ruling against G.A.
would have had, in the present case, for freedom of expression with regard to matters of public
interest. It further noted that, although the Supreme Court had been assessing the case at final
instance, it had carried out a detailed analysis of the balance to be struck between the applicants’
right to respect for their private life and G.A.’s right to freedom of expression, assessing them in the
light of the criteria identified in its case-law and referring at length to the Court’s case-law. Having
regard to the discretion (“margin of appreciation”) afforded to the national authorities in the
present case, the Court saw no strong reason to substitute its own view for that of the Supreme
Court. It could not therefore be stated that the national authorities had failed in their positive
obligation to protect the applicants’ right to respect for their private life within the meaning of
Article 8 of the Convention. It followed that there had been no violation of Article 8 of the
Convention.
Article 6 § 2
The civil proceedings in this case related to two claims lodged by the applicants. The first claim had
sought compensation on account of the alleged damage to their reputation and their right to the
presumption of innocence, resulting, in their view, from the statements made about them by G.A.
The second had sought an injunction banning the sale of the contested book and documentary. The
civil proceedings had not therefore related to a “criminal charge” against the applicants. In addition,
they had not been linked to the criminal proceedings opened after the disappearance of their
daughter in such a way as to fall within the scope of Article 6 § 2 of the Convention.
As a subsidiary consideration, even supposing that Article 6 § 2 of the Convention was applicable to
the civil proceedings in issue in this case, it did not appear that, in its judgments of 31 January 2017
and 27 March 2017, the Supreme Court had made comments implying any guilt on the part of the
applicants or even suggesting suspicions against them with regard to the circumstances in which
their daughter had disappeared. In consequence, the Court concluded that the applicants’ complaint
under Article 6 § 2 on account of the reasoning in the Supreme Court’s judgments was manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention and, as such, inadmissible.
