Campbell Deane: Newspaper on uncertain ground

Published on Sunday 22 May 2011 19:21

There is no doubt that the decision of a Scottish Sunday paper to identify the footballer at the centre of the Twitter feeding frenzy was a calculated one, but only time will tell whether it is an act of folly.

The position advanced by the paper is two-fold. Procedurally the newspaper argues that for an injunction to be effective, the court order must be served specifically on the newspaper, even if it is fully aware of the gagging order.

It also argues that the English courts have no power to grant injunctions to stop Scottish newspapers publishing details that the English courts have said should remain out of the public domain. In short, it doesn't matter what happens down south, as it is an entirely separate legal jurisdiction.

The first argument holds no water. In 1991 the Attorney-General raised contempt proceedings against the Sunday Times for publishing extracts from the book Spycatcher while an injunction was in force against other newspapers.

There was no such injunction against the Sunday Times but it was aware of its existence. The House of Lords made it clear that if a publisher knowingly acted to frustrate a court order even when not a party to it, then that amounted to contempt.

Even though the basic principle in Scots law remains that service of the interdict must take place on the specific newspaper, the Spycatcher case has been interpreted by the Scottish media as restraining publication where there is the requisite knowledge.

The question of whether an English court can bind its Scottish counterpart is a more thorny issue. Certainly the English courts believe they have the jurisdiction to do so. In both the Mary Bell and Jamie Bulger cases orders were granted to the world at large - as was the order in the footballer case.

I can think of several Scottish judges who would be seething if the boot was on the other foot and an English paper held two fingers up to their judgment.

Time will tell if their English counterparts form a similar view and report the matter to the Attorney-General.

If the English courts were to do so then one avenue they might follow would be to establish whether any of the Scottish newspaper company's directors were also directors of English titles which would be bound by the injunction.

Those directors are under a duty to take reasonable steps to ensure that the order is obeyed, and if they wilfully fail to take those steps they can be punished for contempt. If they agreed with publication they too would be in trouble.

At present no complaint has been made to the Attorney-General.

One would suspect the most likely source of a complaint would be the footballer himself. The newspaper can only hope that given the hostile publicity following his proceedings against Twitter his appetite for further publicity will be lost.

• Campbell Deane is a partner at Scottish media law firm Bannatyne Kirkwood France & Co, and is legal adviser to The Scotsman