This is the final version of Madeleine Foundation’s written submission,
originally made on 7 January 2009, but revised on 6 February 2009, to
the current enquiry by MPs on the Department of Culture, Media and
Support into Press Standards, Privacy and Libel.
By
permission of the Madeleine Foundation, I'm posting up this written
submission they made on February 2009 to the House of Commons Committee
on Press Standards and Libel. The Committee refused to accept the
original submission as they said it was libelous, but after the
Foundation agreed to withdraw several long passages from the submission,
the Commons Committee accepted the submission and placed it on the
written record in the House of Commons Library.
++++++++++++++++++++++++++++++++++++
The Madeleine Foundation
Asking the questions about what really happened to Madeleine McCann
Website: www.madeleinefoundation.org.uk
Submission to the Parliamentary Select Committee on Culture, Media and Sport: Chairman, Mr J Whittingdale
PRESS STANDARDS, PRIVACY AND LIBEL: NEW INQUIRY
Executive Summary
The
Madeleine McCann case has been unique. It would be unwise to change
existing media procedures based just on this one case. Different
considerations apply to the libel of Robert Murat and to the alleged
libel of the McCanns.‘
Abduction’
has frequently been claimed by parents of young children when it later
turns out that the child has died and the parents are responsible,
whether the child has died as the result of an accident, negligence,
neglect or deliberate act. It is important that the media are able to
engage in reasonable and fair discussion of the weaknesses of any
particular claim of abduction, without fearing the consequences of a
possible expensive libel action.This
new submission, dated 6 February 2009, replaces our original submission
dated 7 January 2009. It has been amended, on advice from the Committee
Clerk, primarily to remove any references in our submission which could
be construed by some as being defamatory1.
The Madeleine Foundation welcomes the opportunity to comment to the
Select Committee on issues of privacy, libel and the Press Complaints
Commission’s role, whilst at the same time believing that the Madeleine
McCann case is unique and deserves special consideration in its own
right.
2. We wish to offer observations and comments on the following matters on which you are seeking views:
Why
the self-regulatory regime was not used in the McCann case, why the
Press Complaints Commission (PCC) has not invoked its own inquiry and
what changes news organisations themselves have made in the light of the
case;
Whether
the successful action against the Daily Express and others for libel in
the McCann case indicates a serious weakness with the self-regulatory
regime;
The interaction between the operation and effect of UK libel laws and press reporting;
The
observance and enforcement of contempt of court laws with respect to
press reporting of investigations and trials, particularly given the
expansion of the Internet;
What
effect the European Convention on Human Rights has had on the courts’
views on the right to privacy as against press freedom;
Whether
financial penalties for libel or invasion of privacy, applied either by
the courts or by a self-regulatory body, might be exemplary rather than
compensatory; and
Whether, in the light of recent court rulings, the balance between press freedom and personal privacy is the right one.
3.
Given our area of interest, we shall focus on (a), (b) and (c). The
Madeleine Foundation was formed at a public meeting in January 2008. Our
aims can be viewed on our website: www.madeleinefoundation.org.
We campaign on the obvious child neglect issues raised by the Madeleine
McCann case - and seek to assist in finding out what really happened to
Madeleine McCann. To this end, our Secretary Mr Tony Bennett has
written a book on the case: “What Really Happened to Madeleine McCann? -
60 Reasons which suggest she was not abducted”. Reference will be made
to passages of that book in this submission. A copy of the book
accompanies this submission and we will supply a copy to each member of
the Select Committee if required.
The truth about the disappearance of Madeleine McCann, and how that truth will shape the conclusions of the Select Committee4.
We cannot begin to discuss the role of the libel laws and the Press
Complaints Commission in a case such as that of the ‘disappearance’ of
Madeleine McCann unless we first take account of the context. Supremely,
that context involves recognising that there are two very opposing
views of what really happened to Madeleine McCann in Praia da Luz in May
2007. We shall set out those two views in a moment. 5.
We would suggest that a major function of the reporting news media -
radio, TV and newspapers - is to give us the facts, the truth - allowing
us to draw our own conclusions. It is often said, however, of certain
newspapers, that they ‘don’t let the facts get in the way of a good
story’. And in the context of newspapers losing sales to the internet,
and TV-viewers switching to the internet for news, the pressure to
increase sales or viewers, and ‘tell a good story’ at the expense of
staying true to the facts, is growing stronger. 6.
The Press Complaints Commission’s primary role is to ensure ‘fair’ and
‘accurate’ reporting, as its Code provides. This, we acknowledge, is a
particularly difficult task when a factual issue is hotly contested and
also becomes one of worldwide media interest, as was - and remains - the
case, with the Madeleine McCann mystery. Here, then, is a summary of
the two main views on the case, with a brief look at who supports each
view.Viewpoint
A: Madeleine McCann was abducted at round about 9.15pm on Thursday 3
May while her parents and their friends were dining at a Tapas bar 120
yards away7.
This has been the claim of the McCanns from their first announcement
that Madeleine had been abducted at around 10.00pm on Thursday 3rd May 2007. The ‘fact’ of the abduction was put into the media with lightning speed. The Daily Telegraph had an online article, reporting the ‘fact’ of the abduction, filed at 00.01am on Friday 4th
May. TV and press reports giving details of how and when Madeleine was
supposed to have been abducted circulated and multiplied rapidly. 8. During the course of 2007 it became clear that the McCanns were claiming the abduction took place at around 9.15pm on 3rd May 2007. In September 2007 Dr Gerry McCann - as several papers reported - [passage deleted]
publicly suggested that the abductor might have been in the apartment
with him as he was checking the children between 9.05pm and 9.10pm. What
we claim is the weakness of the evidence for the abduction is the focus
of our booklet: “What Really happened to Madeleine McCann” and the
Committee is respectfully referred to the facts and arguments there.9.
Those who hold that Madeleine was abducted view all discussion of an
alternative view with hostility. The McCanns’ press spokesman Clarence
Mitchell, together with unnamed legal ‘sources’ who advise the McCanns,
have characterised such views as ‘libellous’. They have gone further and
described the original senior investigator in the case, Snr Goncalo
Amaral, as guilty of deliberately attempting to smear them, and to
fabricate evidence against them, whilst at the same time failing to
conduct a proper search for the alleged abductor.Viewpoint B: Madeleine McCann died in Apartment 5A some time before the evening of 3rd
May (for reasons that no-one can yet be sure about) and that the
McCanns and some of their friends have helped to cover this up by
removing and hiding the body10.
This, crucially, was the clear view of the Senior Investigating
Officer, Snr Goncalo Amaral, who directed the investigation until
removed from it on 2 October 2007. It was also the view of his team. We
shall say more about the circumstances of Snr Amaral’s removal from the
investigation and how he himself has been treated by the British media
in a moment. 11a. Leicestershire Police [passage deleted]
in conjunction with the Portuguese Police made a joint decision to call
in the services of the cadaver dog-handler, Martin Grime. Uniquely in a
case such as this, due to Portuguese laws which now allow the
publication of selected material from a police investigation when an
investigation is suspended, videos of these dogs in action, allegedly
scenting the smell of a corpse in nine different locations, can be
viewed on many websites and have been seen by hundreds of thousands
already. 11b. The blood-hound Keela also alerted to blood in several of the same locations. The Sun newspaper
published a link to the ‘cadaver dog videos’ on its internet edition.
Other newspapers have since done so. The cadaver dog evidence is
discussed on pages 6-9 of our booklet. Given the claim by the
dog-handler and his senior officer, Mark Harrison, that the cadaver dog
Eddie who detects the smell of human corpses had never once given a
false positive in 200 previous outings, it was scarcely surprising that
the British media sought to give prominence to the dogs’ findings. They should not be criticised for that. 12.
We admit that if viewpoint ‘B’ above is true, it necessarily follows
that the McCanns have been trying to deceive us all about what really
happened. It is a sad fact, as we explain in the very first section of
our booklet, that in many cases over the years, parents of ‘missing’
young children have claimed abduction, only for the truth later to
emerge that they themselves were in some way responsible for the child
having died, whether by accident, neglect, negligence or deliberate act.
We list many such examples.A summary of media coverage of the Madeleine McCann case13.
Before going on to discuss the implications of the media coverage, and
the libel actions, the implications on all of that for free speech and a
free press, and before presenting our recommendations, we will review,
chronologically, the main elements of the media reporting of the case:14. Phase 1 - May to July 2007:
Massive coverage of the search for Madeleine; huge coverage of the
McCanns’ visits to the Pope, the White House, Morocco, Germany etc.;
acres of newsprint about new alleged ‘sightings’ of Madeleine in many
countries; some interviews with the McCanns; little coverage of the
child neglect aspects of the case; much coverage of the activities of
abductors with liberal references to ‘gangs of paedophiles’,
‘international networks of paedophiles and child traffickers’ etc.; many
references to Robert Murat behaving ‘suspiciously’ and to him being
made an ‘arguido’ 15. Phase 2: August 2007 to February 2008:
First doubts about the McCanns’ abduction claim surfaced at a press
conference in Germany in June. Doubts grew as the press in Portugal and
Spain in particular reported on leaks from the Portuguese Police about
such issues as DNA and the scent of death allegedly found at the
McCanns’ apartment and in the hired Renault Scenic. There was huge
reporting of the McCanns being made suspects, and lengthy interviews
with the McCanns, their content being tightly controlled by the McCanns’
PR team, Clarence Mitchell for example laying down a condition that
they would require a minimum of two hours’ notice of all questions. Many
more reports of ‘sightings’ followed, including massive coverage on
nearly all front pages of a blonde girl being carried on the back of a
Moroccan peasant, later proved to have been her own child. Attacks on
the ‘sacked’ and ‘disgraced’ Snr Amaral built up as he was accused of
having beaten a confession out of Leonor Cipriano in 2004 (In September
2005, Ms Cipriano, along with her brother, were both convicted of the
murder of her 8-year-old daughter Joana, having initially claimed that
she had been ‘abducted’). A one-hour Panorama documentary on the case on
19 November 2007 discussed the case but the lead interviewer, Richard
Bilton, did not probe or test the claim of abduction. It should be noted
here that at the time Madeleine ‘disappeared’, the McCanns’ spokesman,
Clarence Mitchell, held the post of Head of the Media Monitoring Unit
for the Central Office of Information, and was therefore close to the
very heart of the government’s ‘spin’ operations.16. Phase 3: March to July 2008:
More reported ‘sightings’. The first of three sets of libel proceedings
was concluded, with huge awards being agreed by the defendant
newspapers, in turn, to the McCanns, to Robert Murat, and finally to the
friends of the McCanns, known popularly as the ‘Tapas 7’. On 19 March,
the press announced that the McCanns had agreed £500,000 libel damages;
on 17 July Robert Murat settled for £550,000 (and two others, Sergei
Malinka and Michaela Walczuch, were said to have settled for £200,000
between them). Finally the ‘Tapas’ 7’ settled for a further £375,000 on
15 October. The first of these awards - to the McCanns - unquestionably
put an end to speculative stories about the McCanns’ possible
involvement in the death of Madeleine and/or in a cover-up of her death.
17.
These massive libel awards contributed towards the process of ending
all debate in the mainstream media on how Madeleine McCann went missing.
Then in July 2008 came the announcement by the Portuguese judicial
authorities that there was ‘insufficient evidence’ to charge anyone with
a crime. If she had been abducted, the abductor had not been identified
and there were no leads on him. If Madeleine had died in Apartment 5A,
for which there had seemed to be at least a good range of circumstantial
evidence, then there was not enough forensic evidence to lay charges,
whether for causing or allowing the death of a child, preventing an
inquest, or perhaps perverting or interfering with the course of
justice. 18. Phase 4: August to December 2008:
The suspension of the investigation into Madeleine’s disappearance
meant that interest in the story plummeted. There is no real sense that
the police are likely to, or even want to, turn up new evidence. Yet,
arguably, some of the most sensational evidence in the case has now been
made publicly available, namely with the systematic release by the
Portuguese police of large chunks of the evidence collected by the
police in the case - something which of course could not happen in the
U.K., as the integrity and confidentiality of an investigation is
normally stoutly protected e.g. by exemptions in the Freedom of
Information Act 2000.Evidence that Madeleine was not abducted19.
For those who may not be aware of it, thousands of pages of evidence
and exhibits on the case have now been disclosed by the Portuguese
police. They include dozens of witness statements, including those by
the McCanns and their friends, from we say it is possible for example to
identify significant contradictions and changes of story. [passage deleted]
All of this evidence has been placed on several of what might be termed
‘McCann-sceptic’ internet forums, the leading one of which, for over a
year, has been ‘The 3 Arguidos’. Here, videos can be viewed, original
documents in Portuguese are being translated, and the evidence
discussed. The 3 Arguidos, incidentally, has as its strap-line: “Because
we do not believe in our press!”, and many contributors on that site
explain how they have ceased to buy British newspapers because they are
offering no discussion whatsoever of the evidence that Madeleine was not
abducted.20.
In addition to all of that, we have a very comprehensive book by Snr
Goncalo Amaral titled ‘La Verdada de Mentira’ (‘The Truth about a Lie’),
in which he gives an investigator’s-eye view of the evidence and
presents a convincing case that Madeleine McCann died in Apartment 5A
(probably as the result of an accident, he says) and that the McCanns
did indeed cover up her death. His first print-run of 200,000 copies has
already sold out in Portugal and been translated into German, Danish
and Norwegian. It is being translated into several other languages and
English translations are available on the Internet. There is widespread
discussion of its contents on the continent. But not in the U.K.The impact of the libel awards on freedom of the press and free speech21. This is what Mr Justice Eady said when announcing, in the High Court, the decision of Express Newspapers to agree to pay £550,000 damages to the McCanns:“
The
general theme of the articles was to suggest that Mr and Mrs McCann
were responsible for the death of Madeleine, or that there were strong
or reasonable grounds for so suspecting, and that they had then disposed
of her body; and that they had then conspired to cover up their
actions, including by creating 'diversions' to divert the police's
attention away from evidence which would expose their guilt. Many of
these articles were published on the front pages of the newspapers and
on their websites, accompanied by sensational headlines”.22.
Because of that libel award, and the other two, there is a reluctance
to even discuss the mystery of Madeleine’s disappearance. There appear
to be - we say contrary to the evidence - a general acceptance by the
mainstream media that she was abducted, though we note that many
newspapers take care to use phrases such as ‘disappeared’, ‘went
missing’ or ‘reported missing’, rather than ‘abducted’. Discussion of
the evidence emerging from the Portuguese police files has thus been
stifled. On October 26, The People ran a short piece referring to The Madeleine Foundation’s website. It ran: QUOTE
McCanns fury over 'neglect'
Exclusive by Marc Baker -- 26 October 2008
Missing
Maddie McCann's furious parents have vowed to sue a lawyer who suggests
they are guilty of child neglect. Anthony Bennett, 61, is urging the
Government to bring in a "Madeleine's Law" making it a criminal offence
to leave children under 12 on their own. His website attacks doctors
Kate and Gerry McCann, both 41, over the disappearance of Maddie, now
five, from their holiday flat in Portugal last year. McCann spokesman
Clarence Mitchell said: "Our lawyers are watching him. They are
constantly monitoring his claims, which we consider are libellous." A
legal source close to the McCanns, of Rothley, Leics, said: "They are
more than annoyed and deeply offended. They say enough is enough. All
they are trying to do is get their daughter back."UNQUOTE23.
That newspaper article very nearly caused us to abandon plans to
publish: “What Really Happened to Madeleine McCann?” If the country’s
top newspapers, and SKY News, had paid out over £1.6 million in libel
damages, if the McCanns were ‘vowing to sue’ ,and if their spokesman was
announcing to the world that our comments were ‘libellous’, we were
clearly at risk if we dared to discuss, as we do in our book, any
alternative view of the case. Despite the right to ‘free speech’, we
feared the consequences of proceeding. Yet we have done so because we
were confident about the facts stated in the book and the arguments that
we have used to question the abduction claim.Clarence Mitchell’s speech to the Society of Editors, November 200824. Before drawing conclusions, we will briefly refer to parts of the speech given by Clarence Mitchell to the Society of Editors in November last year, just before the Select Committee set up the current enquiry.
25.
Here are extracts from what he said: “Speaking at the Society of
Editors conference in Bristol yesterday, Mitchell told delegates that he
faced the daily problem of dealing with inaccuracies created by a
hungry British press pack. He added that 99% of the stories coming out
of the local media in Praia da Luiz were ‘totally inaccurate lies’.
Mitchell said: ‘The British press out there in Portugal were lazy. The
Portuguese police hid behind the law of judicial secrecy saying they
weren't able to comment…but that didn't stop lots of information finding
its way from police files into the Portuguese press. However, when the
British press made inquiries they came up against a stone wall, so they
resorted to sitting in the local bar, which had the lethal combination
of free Wi-Fi and alcohol. They then sat every morning just going
through whatever had been leaked to the Portuguese papers, 99% of it
totally inaccurate lies, 1% distorted or misunderstood. This was then
put to me, I would then deny or try to correct it, that would be a quote
from me, ‘Mitchell's balanced it’, that was balanced journalism, and
off it went’. He added
that British newspapers put reporters under pressure to come up with
new angles and exclusive stories…‘I had certain reporters from certain
groups almost in tears some mornings saying, ‘If you don't give me a
front-page splash by 4pm I'm going to be fired’…Things that were
allegations or suggestions in the Portuguese press were hardened up into
absolute fact…’”
26.
But despite Mitchell’s claims, much of the Portuguese material now
being disclosed and translated confirms the accuracy of many of the 2007
press reports, especially regarding the evidence of the cadaver dogs
and the contradictions and changes of story from the McCanns and their
friends. We concede that some those 2007 reports were factually
incorrect. No doubt they contained much speculation. There was
sensationalism in the tabloids. But Mitchell’s bold claim that 99% of
the leaks were ‘totally inaccurate lies’, and 1% ‘distorted or
misunderstood’, was itself a gross misrepresentation, given all the
information the Portuguese police have now allowed us to see. 27.
We need to deal with one other matter. One person whom we believe was
seriously libelled by many sections of the British press was the Senior
Investigating Officer in the case, Snr Goncalo Amaral. He was frequently
described in sections of the British press as a ‘disgraced cop’. The
reason for this was partly over claims that he was removed from the
Madeleine McCann enquiry because of unwarranted criticisms of the
British government, but more because he was being accused of having
ordered his officers to beat a confession out of Leonor Cipriano, the
convicted murderess of her own daughter (see paragraph 15 above). At the
time of submitting our report to the Select Committee, Snr Amaral is on
trial in respect of this allegation in the court at Faro. He is thus
innocent until proven guilty. To call Snr Amaral ‘the disgraced cop’ on
the basis of this allegation was no better than if the British press had
referred to ‘the disgraced McCanns’ after they were made suspects. In
fact, the court proceedings in Faro are indicating, as many believed,
that there is no substance to these allegations. We cannot really say
more, as the proceedings have been mysteriously adjourned several times
and are not yet concluded. If, as we expect, Snr Amaral is exonerated,
we trust that those sections of the British press who have labelled him
‘the disgraced cop’ will have the decency to apologise and correct their
statements. That is a matter that may yet come before the Press
Complaints Commission. Conclusions28.
How members of the Select Committee approach the first two issues in
their list will depend, therefore, on whether they believe either
that there is only one permitted view on the case - the view now
promoted in all Britain’s mainstream media - namely that Madeleine
McCann really was abducted, or whether
they believe there may be an alternative explanation for her
‘disappearance’. The question therefore may be put like this: is it
right and proper that the British media (and others) should be perfectly
free to discuss the evidence which points away from
abduction without fear of another libel action? It must be borne in
mind that the evidence now made available to us from the Portuguese
police files is evidence not previously made public. In our view it
strongly merits discussion. Yet debate is stifled, suppressed. The
British public does not even get a glimpse of an alternative view,
because the British media has collectively closed discussion on the
case.
29.
Responding to the first issue: ‘Why the self-regulatory regime was not
used in the McCann case, why the Press Complaints Commission (PCC) has
not invoked its own inquiry and what changes news organisations
themselves have made in the light of the case’, we say that the
Madeleine McCann case is unique in many ways. For that reason alone, it
would be unsafe to make important changes in procedures and practice
because of it.
30. In a case like this, where the abduction claim may turn out to be false, we believe it was - and is - in all our best
interests that there is full and frank discussion of the evidence in
the case, notwithstanding that the police are not actively pursing any
lines of enquiry, so far as we know. Indeed, in some respects the Express Newspapers Group did
a good job in the summer and autumn of 2007, to the extent that we now
know that they were using accurately-sourced leaks from the Portuguese
police - whether authorised or not. If they were embellishing and
sensationalising, that is another matter. But if we now look at the Express Group’s
articles on the cadaver dog evidence, these have since been proved to
have been both fair and accurate. The Press Complaints Commission could
have no complaint about those.
31.
The Press Complaints Commission has a reputation of being ineffective.
The main author of this submission has had previous experience of such
ineffectiveness, notably when it took the PCC months to investigate a
biased article by The Sun in January 2006 on the evidence in the Stuart Lubbock case. It took nine months before The Sun reluctantly agreed to allow his father, Terry Lubbock, to write a 150-word letter of correction to the article.
32.
In a fast-moving story of world-wide significance, the Press Complaints
Commission is nowhere near equipped to act promptly or effectively. If
they had had to adjudicate back mid-2007 on an article about the
findings of the cadaver dogs, for example, what could they have done? If
a news article is unfair or inaccurate, the complainant should be able
to get a near immediate response from the newspaper. Failing that, he
should then get an immediate response from the PCC. Then, if
appropriate, an apology, correction, explanation or a statement by the
complainant should be published. If there had been such a mechanism in
place, any embellishing or sensationalising by the Express Group could have been dealt with effectively.
33.
Now the second question: ‘Whether the successful action against the
Daily Express and others for libel in the McCann case indicates a
serious weakness with the self-regulatory regime’. We say it indicates
that the newspapers involved did not take sufficient care in writing
their stories or in checking their sources. For example, it is one thing
to say, as we do our in book, that there is little or no evidence that
Madeleine was abducted. But it is quite another thing to say - which
incidentally we do not say in our book: ‘The McCanns killed Madeleine’.
If any newspaper put it like that, without a sufficient foundation for
doing so, they have only themselves to blame if they are then
successfully sued for libel.
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