Case Law, Strasbourg: McCann and Healy v Portugal, Article 8 claim by McCanns dismissed – Catherine Arnold

In McCann and Healy v. Portugal ([2022] ECHR 725)(in French only), the Fourth Section of the European Court of Human Rights held, unanimously, that the applicants’ Article 8 rights had not been violated by the publication of a book, a documentary programme, and a newspaper interview alleging that the applicants’ daughter had died inside their holiday flat and that the applicants had hidden her dead body and fabricated her abduction.

Background

The applicants, Gerald McCann and Kate Healy, are British nationals. In May 2007, they took their three children on holiday to southern Portugal. While the family was in Portugal, their youngest child, Madeleine McCann, then aged three, disappeared. The prosecutor’s office opened an investigation focusing on Madeleine’s possible abduction. It was led by Inspector Gonçalo Amaral (“G.A.”).

In September 2007, the applicants were placed under investigation. Biological and blood samples had been found inside the family’s flat, as well as in the trunk of a car which the applicants had rented a few days after Madeleine disappeared. It was suspected that Madeleine had died inside the flat, perhaps as the result of an accident, and that her parents had hidden her body and faked an abduction. Shortly after the criminal investigation of the applicants began, on 2 October 2007, Inspector G.A. was removed from the investigation.

Nine months later, on 21 July 2008, the prosecutor’s office discontinued the criminal investigation of the applicants due to lack of evidence. A redacted copy of the dossier from the investigation was made available to the media and its contents were reported in the press.

Three days after the investigation was closed, Inspector G.A. (who had retired on 1 July 2008) published a book about the case. In the book, G.A. he alleged that ‘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. repeated this theory in a newspaper interview. His book was subsequently made into a documentary programme, which first aired on the Portuguese channel TVI in April 2009 and was also sold on DVD.

In May 2009, the applicants sought an injunction to ban the sale of the book and DVDs, as well as the dissemination of all interviews, publications or videos defending the theory set out in G.A.’s book. In a separate action, the applicants also sought the seizure of all profits which G.A. had made from the sale of the book, the DVDs, or his author’s rights. The applicants later brought civil claims against G.A., the book’s publisher, the production company responsible for the documentary, and TVI [35]-[36].

The applicants’ claims were dismissed in the Portuguese courts. Although the tribunal of Lisbon granted the injunction at first instance [39], the decision was overturned by the Lisbon Court of Appeal [44]. In two judgments delivered on 31 January and 21 March 2017, respectively, the Supreme Court upheld the Court of Appeal’s decision, finding that there had been no unlawful interference with the applicants’ right to their reputation and that the principle of the presumption of innocence did not apply in their case [48]-[58].

The applicants lodged an application with the European Court of Human Rights on 28 July 2017. They alleged, first, that the statements made by G.A. had damaged their reputation, their good names, and their right to be presumed innocent and, secondly, that the reasoning contained in the Supreme Court’s judgments of 31 January and 21 March 2017 had breached their right to be presumed innocent.

Judgment

Article 8

The Court considered that G.A.’s contested statements in the book, interview, and documentary were sufficiently serious to engage Article 8 [70]. The Court also determined that the Portuguese civil courts had correctly identified the interests at stake (G.A.’s Article 10 rights and the applicants’ Article 8 rights, which were linked to their right to be presumed innocent), as well as the fact that these interests deserved equal protection [83]. The Court therefore considered that the question it had to answer was whether the domestic courts had undertaken the required balancing exercise in conformity with the Axel Springer criteria [84].

As regards the context in which G.A.’s contested statements were made, the Court agreed with the Supreme Court that the statements concerned a debate of public interest [85]. The Court also considered that the applicants were public figures. This was because, in seeking media attention to aid in their search for their daughter, they had ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’ [88]. The question was whether, in the circumstances, the applicants could rely on a ‘legitimate expectation’ of protection of and respect for their private life. Furthermore, the Court determined that the information contained in the book, interview, and documentary had come from the criminal investigation’s dossier, which had been made available to the media [90].

Turning to the content of the contested statements, the Court noted that the statements were more serious because they were made by G.A., the inspector in charge of the investigation until 2 October 2007 [92]. However, having regard to the statements’ context and to the findings of the domestic courts, the Court held that the statements were ‘value judgments’ which had a ‘sufficient factual basis’ [93]. The Court took the view that G.A.’s theory was based on facts which had been gathered during the criminal investigation into the applicants and which had been brought to the public’s attention then [93]. Furthermore, the Court noted that G.A.’s theory was considered in the investigation’s dossier and, indeed, had led to the opening of the investigation in the first place [93]. Finally, the Court considered that G.A.’s contested statements were clearly part of a debate of public interest about the investigation’s closure, within which G.A.’s theory was one opinion among others [94].

The Court found further that G.A.’s contested statements did not undermine the applicants’ right to be presumed innocent (Article 6(2)) [95]. This was because the statements were made after the closure of the criminal investigation into the applicants on 21 July 2008. Since there was no ongoing investigation against the applicants, only their reputation (protected by Article 8) and the public’s perception of them was at stake.

Turning to consider the consequences of the contested statements, the Court found that, even supposing that the applicants had suffered damage to their reputation, this was not because G.A. had published his theory [96]. Rather, it was because the applicants had been suspected of covering up their daughter’s death and placed under criminal investigation, leading to extensive media coverage and public debate. Indeed, the Court noted that the information contained in the book, the documentary programme, and the interview had been brought to the public’s attention in some detail even before the investigation file was made available to the media in July 2008 [96].

In any event, the Court found that the book, interview, and documentary programme had not had a serious impact on the applicants’ social relations or on their attempts to find their daughter. The Court noted, in particular, that the applicants had been able to continue their media campaign after the book’s publication, including by cooperating in a documentary about their daughter’s disappearance, and had continued to give interviews to the international media [97].

Finally, the Court considered the particular circumstances of the case. The Court had regard to the fact that G.A. was the inspector who had led the criminal investigation of the applicants until 2 October 2007 [98]. However, the Court agreed with the findings of the Lisbon Court of Appeal and the Supreme Court that G.A. had not broken confidentiality by making his statements. The Court found that G.A.’s statements merely expressed his interpretation of a widely debated and high-profile case. Furthermore, the Court considered that there was nothing to suggest that G.A. was motivated by personal animosity against the applicants [99]. The Court also agreed with Portugal’s submission that, in the particular circumstances of the case, a ruling against G.A. would have had a chilling effect on freedom of speech in matters of public interest [100].

In view of these considerations, the Court found that the Supreme Court had carried out a detailed analysis of the balance to be struck between the applicants’ Article 8 rights and G.A.’s Article 10 rights, making ample references to the Court’s case law [101]. In view of the margin of appreciation afforded to national authorities in this area, the Court saw no strong reason to substitute its own view for that of the Supreme Court. As a result, the Court held, unanimously, that there had been no violation of the applicants’ Article 8 rights.

Article 6(2)

In relation to the applicants’ second allegation, the Court held that Article 6(2) was not engaged because the applicants’ civil claims, with which the Supreme Court’s judgments of 31 January and 21^t March 2017 were concerned, did not fall within its scope. In the event that Article 6(2) had been engaged, the Court considered that the Supreme Court did not appear to have made comments which implied that the applicants were guilty, or which even suggested suspicions against them. For these reasons, the Court held that the applicants’ complaint under Article 6(2) was manifestly ill-founded within the meaning of Article 35(3) ECHR and, therefore, inadmissible.

Comment

In this judgment the Court reiterated that public figures who are the subject of a news report can expect to receive more restricted protection of their private lives. The fact that the applicants had sought media attention as part of their efforts to find their daughter did not have any bearing on the level of protection of their private lives which they could expect. The Court found that by engaging with the media, the applicants had made themselves public figures and had ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’.

While the Court reiterated the principle set out in, inter alia, Von Hannover (No. 2), that public figures may still rely on a ‘legitimate expectation’ of protection of and respect for their private lives in certain circumstances, the Court did not find that the applicants could do so here. Indeed, the fact that the applicants had previously cooperated with the press and that they continued to engage with the media as part of the search for their daughter after the publication of G.A.’s book were factors which the Court took into account in reaching its decision that their Article 8 rights had not been violated.

In this judgment, the Court also indicated that where a high-profile criminal investigation against a suspect has been closed, publishing a theory that the suspect is guilty is unlikely to violate his or her right to be presumed innocent. In the applicants’ case, the Court found that G.A.’s statements did not undermine their Article 6(2) rights because they were made after the criminal case against them was closed. However, the Court left open the possibility that it would have reached a different conclusion if the investigation had been ongoing. In those circumstances, the contested statements (made by the former head of the investigation and based on information from the investigation file) might have prejudged the prosecutor’s assessment of the facts [95].

Catherine Arnold, is a future trainee at Matrix Chambers with an interest in media and information law.