McCann and Healy v. Portugal (European Court of Human Rights)

Information Note on the Court’s case-law 266
September 2022

McCann and Healy v. Portugal – 57195/17

Judgment 20.9.2022 [Section IV]

Article 8
Positive obligations
Article 8-1
Respect for private life

Refusal of a civil claim by the applicants, accused of criminal conduct in respect of their missing daughter by a former police officer who had been responsible for the extensively publicised investigation, which was discontinued for lack of evidence: no violation

Facts – Following the disappearance of Madeleine McCann in the night of 3 May 2007 in southern Portugal, her parents (the applicants) had been placed under investigation.

On 2 October 2007 the police inspector in charge of the investigation (G.A.) was removed from those duties.

On 21 July 2008 the prosecutor’s office issued a decision to discontinue the investigation on account of a lack of evidence against the applicants.

On 24 July 2008 G.A. published a book, based on the public investigation file, in which he accused the parents of having been involved in their daughter’s disappearance. G.A. gave a newspaper interview which was published on the day that the book was issued. The book was also adapted as a documentary, which was broadcast on television before being made available for commercialisation.

The proceedings brought by the applicants were unsuccessful.

They accused the national courts of having failed in their positive obligation to protect their right to the presumption of innocence and to their reputation.

Law – Article 8:

1. Applicability – The impugned 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 a theory that they had staged an abduction and on a presumed acts of negligence towards her. These statements were sufficiently serious to attract the application of Article 8.

Conclusion: Article 8 applicable.

2. Merits –

The domestic courts had correctly identified the interests at stake, namely, on the one hand, G.A.’s right to freedom of expression and the right to hold opinions and, on the other, the applicants’ right to respect for their reputation, which was linked to their right to be presumed innocent, and had taken the view that G.A.’s rights should prevail over those of the applicants. They had also observed that these rights deserved equal protection and that, in those circumstances, a balancing exercise had to be carried out. Thus, the question which arose was whether the domestic courts had undertaken this balancing exercise in conformity with the criteria laid down in the Court’s case-law.

(a) Contribution to a debate of general interest

In the Court’s view, as the Supreme Court had concluded, G.A.’s book, the related documentary and the interview given by him to a daily newspaper concerned a debate of public interest. The extensive media coverage given to the case clearly showed the interest that it had aroused both nationally and internationally.

(b) The applicants’ previous conduct and the extent to which they were well known

The Court understood that, in seeking media attention, the applicants had wished to use every possible avenue in order to find their daughter. It remained the case that although they had been unknown to the public before the incident, through their media exposure they had ended up acquiring a certain notoriety and becoming public figures. In consequence, they had inevitably and knowingly laid themselves open to close scrutiny of their every word and deed.

(c) The subject matter of the book, documentary and interview, and how the information was obtained

In the Court’s view, the information contained in the book, documentary and interview had come from the criminal investigation case file, which was in the public domain.

(d) The content of the contested statements and their impact

Having regard to the context of the case and similarly to the findings of the domestic courts, the contested statements constituted value judgments which had a sufficient factual basis, namely the elements which had been gathered during the investigation and 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 in September 2007.

Moreover, the criminal case had attracted impassioned public interest both nationally and internationally and had given rise to considerable discussion and controversy. As the 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.

The criminal case had been discontinued by the prosecutor’s office. In this connection, 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. Public confidence in the functioning of the judiciary had also been a relevant issue.

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.

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. 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. Furthermore, the documentary did refer to the fact that the case had been discontinued.

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.

(e) The particular circumstances of the case

The Court could agree with the analysis of the court of appeal and the Supreme Court. Admittedly, the statements in question were based on G.A.’s in-depth knowledge of the case file as a result of his role. However, 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. Thus, 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.

Having regard to the particular circumstances of the present case, a ruling against G.A. would have had a chilling effect in terms of freedom of expression with regard to matters of public interest.

(g) Conclusion

The Supreme Court 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 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. The national authorities had not therefore failed in their positive obligation to protect the applicants’ right to respect for their private life.

Conclusion: no violation (unanimously).

(See also Von Hannover v. Germany no. 2 [GC), 59320/00, 7 February 2004, Legal summary).

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