Saturday, January 29, 2011

Awaiting trial, Serena Wylde campaign for change in libel laws




Algarve holiday homeowner Serena Wylde has had some sleepless nights but not the slightest remorse over the letter of complaint about a Portuguese lawyer that has landed her in court facing a charge of aggravated criminal defamation.

On the contrary, she regards her experience at the hands of the law here as a sort of call-to-arms. She is angry and points out that “anger produces energy.” She has launched a campaign to highlight all kinds of injustices in cases involving ethics, human rights and politics. (For the background to her own case, see my last blog).

Ms Wylde, 59, is a retired businesswoman. Married to a retired Portuguese bank executive, she is highly intelligent, tenacious and passionately concerned with ethics, truth and justice.

After a criminal process was opened in 2007 over her letter of complaint to the Portuguese lawyers' regulatory body, the Ordem dos Advogados, she began studying law herself. She is in the process of studying for a masters degree.

Not all Portuguese lawyers are in her line of fire. She has nothing but praise for the professionalism and punctiliousness of her Lisbon-based defence lawyer, Francisco Teixeira da Mota. This formidable advocate has successfully prosecuted Portugal for violation of Freedom of Expression at the European Court of Human Rights in Strasbourg no less than five times, the latest just before Christmas.

Defamation is broadly defined as a statement that gives a false, damaging impression of someone to others. In verbal form it is called slander; in written form it is libel.

In her own words and reported here for the first time, this is how Serena Wylde views the situation regarding defamation in Portugal compared to the UK. While there are differences, a most important fact to bear in mind is that the law in Portugal does not exist in isolation; a person convicted of a criminal offence in Portugal is automatically recognised as a criminal in the UK and elsewhere.

Serena Wylde says:

<  Vexatious libel litigants in Portugal have little to lose, because:

1. It costs relatively little to bring a criminal libel case in Portugal as it is essentially paid for by the Public Prosecution Service. (Judges themselves who bring libel cases enjoy favourable terms…and are exempt from paying any court costs!)
2. In Britain litigants who bring false actions for libel are ordered to pay the other side’s legal costs and expenses, and if found to have lied are prosecuted for perjury and given a jail sentence. No such consequences hang in the balance in Portugal.
3. Even when the European Court of Human Rights determines that Portugal is in breach of Article 10 governing Freedom of Expression (which it invariably does) and orders the State to reimburse the applicant all fines and damages paid plus expenses incurred, the Portuguese litigant still gets to keep his/her “compensation” as the bill is footed by the Portuguese taxpayer!
There are therefore few deterrents to discourage spurious claims. Hence, libel actions are used as a highly effective intimidatory and persecutory weapon to silence critics, whistle-blowers and consumers alike, leaving the hapless individual who has spoken out with a European Criminal Record and the claimant with a profit! A win-win situation for any malicious litigant.

Unlike in Britain, where it is considered essential that libel cases be determined by a jury, and thus it remains the only civil case still to be decided by twelve members of the public, in Portugal the decision rests at 1st instance with one judge.

The offence of aggravated defamation is an inversion of democracy because it provides for greater punishment where the plaintiff is a judge, public official, lawyer or member of the clergy; insulating from criticism and scrutiny the very people who exercise power over other people’s lives, and therefore need to be subject to greater, not less, scrutiny and accountability.

The only legitimate purpose of libel laws is to protect reputations from unwarranted attack and the dissemination of false statements of fact. A reputation is an objective, definable concept and hence the European Convention refers to the balancing of the rights of freedom of expression and protection of reputation.

In Portugal, criminal libel proceedings can be initiated on the flimsy and totally subjective argument that “one’s honour has been offended”, regardless of the legitimacy of the criticism or the veracity of the statement, and the Portuguese version of Article 10 of the Convention has substituted the word “reputation” for the term “honour.”  >

"The louder he talked of his honor, the faster we counted our spoons."
  ~ Ralph Waldo Emerson



3 comments:

  1. Thank you, MC, for your comment posted below my previous blog. Portuguese readers can view it there. For non-Portuguese readers, MC says: "This is a ridiculous, absurd case. No one can be above the law. There should be no 'untouchables!' What a terrible reality this case highlights...Fortunately, after so much misery and upset, her [Serena Wylde's] lawyer is absolutely brilliant. I only discovered this [case] through Twitter and the English press.

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  2. This is crazy and abusive. However, Serena, with her knowledge of Portuguese and connections to that lovely country, is the perfect person to fight this. It is indeed an unhill battle but remember your Mr Churchill. Never, never, never give up. Right is on your side.

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  3. I have always marveled how Portugal can ignore Euopean legislation, whatever the dictum, and seem to get away with it. Probably no one but the unfortunate who is on the wrong end of some appalling legal decision, probably because no one cares and MEPs have their own fish to fry.
    Love to know what would happen if you sued a Portuguese lawyer/politician etc for slander.

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