Day 9 - Proceedings

McCann v Gonçalo Amaral Libel Trial in Lisbon - Day 9

Lisbon - Tuesday 19 Nov 2013

All lawyers are present. VCFilmes/Multimedia's lawyer is substituted by a lawyer who states that she took part in the Providência Cautelar (Injunction hearing). Witnesses due to testify today are dismissed by defendants TVI, VC and Gonçalo Amaral and will no longer be required to give evidence.

The Judge starts the session by raising the issue of documents requested by the plaintiffs evidencing the value of royalties paid to Gonçalo Amaral. She reminds the Court that G&P's position is that the request is extemporaneous and illegal and that no other payment was received beyond that previously declared to the Court. One such document relates to a request to Gonçalo Amaral to provide receipts X and Y specific to the period from 17 - 30 October 2008 and from 6 - 30 November 2009. The Judge adds that any others are of no consequence since G&P has proven that no other royalties were paid to Gonçalo Amaral.

The Judge reminds the Court of the principle that when a Party declares to another Party that a requested document does not exist or is not in their possession, the legal remedy is not for the pursuer to make a further request but to prove through whatever means that the respondent is being untruthful. The Judge therefore grants a request by the plaintiffs that receipts be provided as previously requested since the defender has failed to produce the information sought.

TVI must provide an extract of accounts for the fiscal years 2008, 2009 and 2010 related to VCFilmes and VCMultimédia. They are given 10 days to produce the relevant documents.

The Judge omits partially a request concerning the accounts of VCFilmes, which are limited to the the period from the 7 February 2012 onwards. VC Filmes is also given 10 days to produce the documents.

The Judge reminds the Court that the request by the plaintiffs is related to the search of material facts in order that justice is done. However, she adds that the lawyer representing G&P should consider that if any of the documents requested in the process contain information unrelated to Gonçalo Amaral then that should be maintained apart for commercial and/or fiscal reasons. The defence is therefore authorised to present said documents in the judicial section in order to protect any commercially sensitive information, making only available that which relates to the process concerming the relationship between G&P and Gonçalo Amaral. G&P is given 10 days to respond to the request.

The Judge adds that G&P has already provided indications about the financial aspect of the publication of the book and about the number of books that have been sold.

The Judge finally confirms that the date of the next hearing will be on Wednesday 27 November 2013. The date for the final allegations will then be fixed.

End of session.

Paulo Santos

Libel trial McCann v Gonçalo Amaral - Day 8 Witness No 3
 
The testimony as it happened...
 
(05.11.2013, 3:30pm) António Paulo Antunes dos Santos is a Lawyer and post-graduate in Communication Law specialising in the field of Intellectual Property Rights. He is currently the Chief Executive of the Federação Editores de Videogramas (FEVIP), a Portuguese Association which represents the interests of its affiliate members in the coordination of the national programme against audiovisual piracy. He is also a former Polícia Judiciária Inspector.
 
Up until 2009, VCFilmes was an affiliate member of FEVIP.
 
The Judge Maria Emília de Avillez Melo e Castro – Do you know what this trial is about?  
PS says he remembers the issue of the Providência Cautelar (Injunction hearing).
 
The Judge – Do you know Gonçalo Amaral?
PS says he does, they were colleagues in the Policia Judiciaria for some years and they occasionally talk to each other. He adds that, as a juridical consultant, he helped GA concerning the contract with G&P and the rights related to the documentary's production by VCFilmes.
 
(The judge raises the issue of confidentiality, but PS says he was not Gonçalo Amaral’s lawyer.
It is established that there is professional confidentiality covering the issue of the contracts, but questions can be asked concerning other matters. This limitation will be observed)

1) The defence lawyer for VCFilmes, Dr. Henrique Costa Pinto, is the only lawyer to question the witness. 

VC - Did you know GA before the book was published?  
PS answers that he met GA at the PJ. Though their areas were different, they worked together for some time and had a good relationship. He says that he left the PJ in 1991 in order to lead a program for the protection of authors against the violation of their rights.
 
VC - Do you know the book by Gonçalo Amaral?  
PS says he does.
 
VC - This book was the basis for a documentary, it was adapted into a film that was broadcast by TVI Have you watched it?  
PS says he did. He adds that he bought the DVD with a copy of the Correio da Manhã.
 
VC - Do you remember when that was?  
PS says it was in 2009.
 
VC - Apart from the version broadcast by TVI, have you knowledge of any copy made of this audio visual work?  
PS – No legal one. He adds that an illegal reproduction appeared on the Internet on a certain site. He says that a complaint was lodged with the PJ.
 
VC - Was it a Portuguese site?  
PS says he doesn't know who the webmaster was, but that the site was a Portuguese. He adds that the pirated copy had subtitles in English

VC - Did VCFilmes put this documentary on-line?  
PS says that they didn't, they were the victims of a fraud and started an action against the hackers.
 

VC - Did your association (FEVIP) protest against foreign sites?
PS says "no".
 
VC - Was VCFilmes damaged in the process?  
PS - Of course they were. If people have free access to the documentary on the Web, it represents a significant loss of clients.
 
VC - Are you sure that VCFilmes didn't authorise this?  
PS - Absolutely.
 
VC - Have you some knowledge of the Criminal Process in the Madeleine case?
PS says he knows some parts of it but none in particular.
 
VC - Have you seen, in the documentary, parts that weren't in the Criminal Inquiry?  
PS answers "no".
 
VC - What about the facts themselves?  
PS says he doesn't know the details, but he thinks that what is in the book is in the Criminal Inquiry. He adds that GA's book analyses the case from the perspective of the investigator, namely, Gonçalo Amaral.
 
VC - But this perspective ended up not being confirmed.  
PS says he doesn't understand what the lawyer means.
 
VC - What is the conclusion of the book?
PS - The evidence established at that determinate time allowed for some conclusions. The shelving of the case was months afterwards. The book, which was published afterwards, might have divergence points, but it clearly states that there is case for further investigations.
 
Evidence ends.

Note
 
The witness was consulted by the 8th Committee (education, science and culture) of the Parliament about the Cinema and Audio-visual Law on the 2 July 2012 http://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=37048
 
About the testimony of this witness in the Providência Cautelar (injunction hearing) http://www.mccannfiles.com/id297.html (10:32 am)
 
About the Court decision on the temporary injunction (February 2010) http://www.mccannfiles.com/id339.html

Luis Froes

Libel trial McCann v Gonçalo Amaral - Day 8 Witness No 2

The testimony as it happened...

(05.11.2013, 2:45pm) Luis Froes is a Partner at Outsider Films Ltd. He was General Manager at Valentim de Carvalho Multimédia between April 2008 and September 2012, in which period the Amaral documentary was produced. His evidence relates to the background in which the documentary was produced.

Please note the following:

• VCFilmes S.A. is the Company which produced the documentary Maddie: The Truth of the Lie based on the book by Dr Gonçalo Amaral (GA) and directed by Carlos Coelho da Silva.
• The rights of edition and distribution of this documentary in DVD format were ceded to VC Multimédia S.A., this Company therefore being their representative as regards the exploration or commercialisation of the rights of television broadcast or transmission of this documentary in foreign countries.
• The reproduction and editing were authorised by Valentim de Carvalho Multimédia to the company Presslivre - Imprensa Livre, S.A., owner of the newspaper Correio da Manhã (CdM) by means of a contract established between both parties, under which terms, the DVDs, their covers and packaging would be produced on account, by order and under the responsibility of Presslivre, to be distributed and commercialised jointly with said newspaper.

The Judge Maria Emília de Avillez Melo e Castro asks the witness if he recalls the details of the distribution contract concerning the DVD.  
LF doesn't remember.
 
The Judge – Who signed the contract?
LF says he did, but he doesn't know about the international contracts.
 
1) The Defence lawyers.
 
a) Valentim de Carvalho’s (VC) lawyer, Dr. Henrique Costa Pinto, is the first to question the witness.
 
VC - Did you take part in the Providência Cautelar (injunction judgement) hearings?  
LF - Yes, but I don't remember when I took the stand.
 
VC refers to the DVD audiovisual adaptation of GA's book which was commercialised at the end of 2009. Was it edited by Valentim de Carvalho?  
LF - Yes
 
VC - Who edited the DVD version which went on sale?  
LF - VC Multimédia distributed. I don't know who edited.
 
VC - I'm talking of the copies of the DVD.  
LF - VC Multimédia edited them.
 
VC - Wasn't the Correio da Manhã in charge of them?  
LF – They had to be distributed.
 
VC - Who commercialised them?  
LF - For me, commercialising or distributing is the same thing. The unique contract that existed was through the CdM.
 
(The Court Clerk is asked to show the contract to the witness)
 
VC - The edition was made by the CdM.  
LF - It was the CdM who sold the DVD to the public.
 
VC - Did VC commercialise the DVD?
LF says that for him "editing" is "editing" (montar)
 
(Note: the Portuguese "editar" that has been translated "edit" means establish the reproduction, publication and diffusion of a work. The Portuguese, as other languages, uses "montar" for "editing" a film).
 
VC - Who created the cover, the packaging?  
LF says it was VC Multimédia .
 
VC - Then you've not looked at the contract? Do you have an issue with Valentim de Carvalho? In Court?  
LF says he has.
 
The Judge – Are you the executing or the executed one?  
LF says the action is against VC. 1LF says that there is a problem of definition: VC produced a documentary, and then looked for the best way to distribute it and found CdM.
 
VC - Who created the cover and the packaging? Who was responsible for this?  
LF says he doesn't remember. Normally the producer would do that, but in this case it might have not happened this way.
 
VC - What about the silver seals with the registration number?
LF doesn't know.
 
VC - Do you know how many copies were made?  
LF says he knows.
 
VC - Do you know how many copies were destroyed?  
LF says that all copies left over were destroyed.
 
VC - Was there a new edition of the DVD?  
LF thinks "no". 

VC – The documentary appeared with subtitles on the Internet.  

LF says that everything, all sorts of things appear on the Web.
 
VC – But with subtitles?  
LF doesn't remember.
 
(VC makes a request to suspend this witness' testimony without prejudicing the continuity of the trial, because the witness requires to study the documents before being questioned further. Only Dra Duarte objects. The Judge tells the witness that he must return to give further evidence on the 27th November at 9:30 am)
 
(VC requests that the examination of the witness continues but on another subject)
 
VC - Don't you remember seeing that documentary on the Web?
LF says he already stated in Court in January 2010 that he didn't.
 
VC - Do you think it could be that documentary?  
LF says that there is no control over the release of films on the Internet.
 
VC - Did VC Multimédia already have the film subtitled?   
LF answers "no".
 
VC - Did VC Multimédia use a system to prevent pirating on the Internet?
LF thinks they don't. He adds it's not rare to see a subtitled series on the Internet before they're broadcast on TV.
 
(VC's next question relates to the Providência Cautelar or Injunction but the Judge objects on the basis that it is not relevant, the main action being the present hearing.)
 
(VC now alludes to the watermark, the documentary having been sold on the international market.)

VC - Did the international sales concern TV channels or the DVD market? Was there edition and sale of DVDs in foreign countries?  

LF says he doesn't remember.
 
VC - Who bought the documentary?
LF says that various TV channels bought it.
 
VC - Was the DVD protected by a watermark?
LF says it was normal that it was.
 
(VC answers a question by the Judge about the watermark and explains that the original documentary is supposed to have a bandwidth (a signal processing))
 
b) Gonçalo Amaral's lawyer, Dr. Santos de Oliveira.
 
SO - As General Director, you had to have knowledge concerning the distribution of the DVD.
LF - Yes.
 
SO - Weren't you supposed also to know how many copies were distributed?  
LF says he doesn't remember. 

SO - You knew how the DVD was created; shouldn't you also know what kind of protection was applied to the copies?  

LF says he didn't have to know that.
 
SO - Could some alteration be made without your knowing about it?  
LF says "no".
 
SO - Did you know whether there was protection against pirate copying?  
LF says that practically there's always a way to bypass any protection.
 
2) The Plaintiffs' lawyer, Dra Isabel Duarte.
 
ID - Where was the watermark?
LF says it was in the DVDs sold in foreign countries.
 
ID - Which countries?
LF says he doesn't know, since he didn't sell them, he doesn't remember. He adds that the only entity that commercialised the DVD was the CdM.
 
The Judge asks if the unsold DVDs were destroyed.
LF says "yes", all those which weren't sold were destroyed.
 
The Judge asks the witness how he knows that.  
LF - I was told so.
 
The Judge – Who told you?
LF - The CdM.
 
The Judge - Is this a normal procedure?
LF - It is.
 
The Judge - When there's no further expectation of selling additional copies, then, before destroying them, do they let you know that they are about to destroy them?
LF - Yes, the CdM announced it beforehand.
 
Evidence ends.

Note
 
This witness previously took the stand in the Providência Cautelar (Temporary Injunction) hearings.
 
Civil Court decision in the Injunction http://www.mccannfiles.com/id339.html

Mário Sena Lopes

Libel trial McCann v Gonçalo Amaral - Day 8 Witness No 1 

A request is made to the Judge to disclose before the last session of the trial (27 November 2013), as to whether the plaintiffs will, on that day, be permitted to take the stand as plaintiffs (not as witnesses, therefore they do not have to be notified). There were no objections.

Another request is made and allowed by the Judge to postpone the testimony of Dr Paulo Sargento, whose absence today is justified. Again, there were no objections.

Publishers Guerra & Paz (G&P) lawyer, Dra Fatima Esteves, informs the Judge that she will no longer be calling witness, Mr Marreiros. 

The testimony as it happened... 

(05.11.2013, 9:45 am) Mário Sena Lopes greets the public when entering the court room and will greet them again before leaving it. He is the owner and manager of Publinédita, a Literary Agency and Publishing Company, based in Lisbon. From 2007 to 2009 he was Editorial Director for the publisher Guerra & Paz and was responsible for the Gonçalo Amaral book, The Truth of the Lie.  He remains as Gonçalo Amaral’s literary agent.

The Judge asks the witness whether he has knowledge of the trial.

SL replies that he is unaware of specific details. He adds that, following the publication of the Amaral book, he is no longer involved with it. 

1) The defence G&P's lawyer, Dra Fatima Esteves, is the first to question the witness.

GP - Do you remember what the normal selling price of the book was when it was launched?
SL thinks it was €13.30

GP - asks what was the price in Brazil.
SL G&P did not market the book in Brazil nor made any approaches to have it published there. Some of the publishers have head offices in both Portugal and Brazil, but that is not the case with Guerra & Paz.

GP - How was the book distributed?
SL says there are two methods but in this case it was done through the Correio da Manha. The books were delivered to the bookshops. The unsold copies are sent back to the publisher who must accept them without invoicing.

GP - asks what are the reasons for the returns.
SL there are many, like the lack of public response, too many copies, contrary publicity in the media, unexpected social factors.

GP - What about the defective copies?
SL there are always damaged copies. They are destroyed either by the publisher or by the distributor. They are of no benefit to the authors.

GP - Other books were written about the McCann case. Have you knowledge of them?
SL thinks there are quite a few, such as, "A culpa dos McCann" (The Guilt of the McCanns) and the Kate McCann book, “Madeleine”. 

2) The Plaintiff’s lawyer, Dra Isabel Duarte.

ID - alluding to the successive 12 editions of the book which she lists, asks the witness if he has an idea of the number of returns, either because the copy was defective or had been damaged.
SL says that G&P, in terms of editions and copies, takes good care to protect the rights of the authors. He adds that at the beginning there are more requests than copies provided. This changes with the final edition.

ID - What about the books which were controlled by the injunction?
SL there is always distributed books that escape an injunction, but most of the copies were delivered to the pursuers' lawyer, namely (Dra Isabel Duarte).  He says he couldn't guarantee that all were delivered, but can guarantee that no copy remained at the publisher or at the distributor.

ID - About the sale price, are you certain of what you answered?
SL says he is.

ID - Wasn't the sale price lowered in the case of this book?
SL says that for most books that doesn't happen. It happens sometimes when the book has no success or when there's a motive to promote it. He doesn't think it is good practice.

ID - What likely happened in the case of this book?
SL nothing of this kind happened.

ID - Therefore the sale price was around €13. What about the hypermarkets?
SL states the hypermarkets don’t normally promote books to the public and adds that the 15,000 copies of the first edition were sold in the same week. He adds that all editions are referred to in the following ones.

The Judge asks whether the witness knows the percentage of returns among the published books.
SL doesn't know.

Evidence ends.


Note:

Mário Sena Lopes was a witness in the matter of the temporary Injunction granted in respect of the McCanns v G Amaral & Others in relation to the publication of the Amaral book, The Truth of the Lie.  The decision for which was delivered on 18 February 2010.

Mário Rui da Silva Sena Lopes, editorial manager for the publisher from July 2007 to September 2009, clarified questions regarding the choice of date to launch the book, foreign editions and destruction of books; he stated that negotiations for the book began in the first trimester [quarter] of 2008.