Newspaper faces court for naming footballer

Newspapers across the UK have been prevented from naming the player after he obtained a super-injunction to protect his private life following an alleged affair with former Big Brother contestant Imogen Thomas.

But yesterday the Sunday Herald published a thinly concealed front page photograph of the player, printing his face with his eyes blacked out and the word "censored" over the top.

In an editorial the newspaper argued the super-injunction was not valid in Scotland - only in England.

But leading media lawyer Campbell Deane warned that, despite England and Scotland having separate legal systems, the paper's editor, journalists and directors could face prosecution for contempt of court and possibly go to prison.

The development is the latest twist in a spiralling battle over privacy and freedom of speech that - until now - has mainly played out online.

The Attorney-General's office last night said it would investigate the publication if it received a request to do so.

"As with all referrals, the Attorney will consider the matter carefully, and take action if necessary.

"Although the Attorney does not have a general enforcement role in regard to civil injunctions, he may bring proceedings in circumstances where public interest warrants it. Normally the aggrieved party would be expected to bring proceedings to protect their interests."

Last night Schillings, the legal firm that represents the player, said it was considering what action to take.

As the firm has already successfully asked a judge to refer an unnamed journalist to the Attorney-General for possible prosecution in the case of another footballer, the same fate could await the Sunday Herald.

However, if action is not taken against the Sunday Herald it could open the floodgates for Scottish papers to publish details of other injunctions sought in England.

The footballer has been named in tens of thousands of messages on the Twitter micro-blogging site, run by a California-based company.

The Sunday Herald said it was "unsustainable" for newspapers not to be able to print information that is available on the internet. Beneath the front page picture published yesterday were the words: "Everyone knows this is the footballer accused of using the courts to keep allegations of a sexual affair secret. But we weren't supposed to tell you that."

The newspaper named the player in an inside story.

The injunction was originally issued to gag Imogen Thomas and the media from naming the player over an alleged affair.

It is thought that the Sun and Ms Thomas are now likely to use the publication of the player's name in an attempt to overturn the original injunction.

The latest move has divided legal opinion in Scotland.

Mr Deane pointed out that the Spycatcher ruling in 1991 against the Sunday Times had established a principle that knowledge of the injunction was the crucial factor, not whether it had been served on the newspaper.

He said: "If the paper was absolutely sure of its position, why didn't it publish the names of all the other super-injunctions, none of which have been served in Scotland?

"I suspect that if the roles were reversed and a Scottish judge's ruling was ignored this way in England the Scottish judge would be seething."

However, top QC Paul McBride, who specialises in criminal law and advised the Sunday Herald, insisted the injunction did not apply in Scotland.

He said: "They forget that Scotland has an entirely separate legal system which makes its own judgments. They think that their rulings affect the world when in reality it is just England and related jurisdictions.

"Basically the footballer's lawyers forgot that they should take out an interdict in Scotland, and that allowed the Sunday Herald to publish.

"They can call it a super-duper-injunction. If they don't have an interdict in Scotland it is worthless."

He said publication was a point of principle and highlighted the different rules that govern the internet and the media.

"It is ridiculous to suggest that a newspaper with a circulation of about 30,000 can be prosecuted when I could go to an internet cafe and tweet the details anonymously to millions of people. If the paper is prosecuted it will completely undermine the public's confidence in the judicial system."

The two lawyers also disagreed over whether the ruling would open the floodgates for Scottish papers to publish details of injunctions made in England.

Mr McBride said it would, because it would highlight that the two legal systems are separate, while Mr Deane suggested that the case was likely to be tested in the English courts.

Last week former RBS chief Sir Fred Goodwin had to abandon his own super-injunction related to an affair with a colleague after he was named in the House of Lords by Lord Stoneham, who was protected by parliamentary privilege.

And last month the broadcaster and political commentator Andrew Marr also had to abandon a super-injunction.

The footballer identified by the Sunday Herald has been regularly named on Twitter and his legal representatives have taken action against the Californian company and "persons unknown".

He has also been identified in the Spanish press.

Last week a committee chaired by Lord Neuberger, the most senior civil judge in England and Wales, said the internet "does add to difficulties of enforcement at the moment" and criticised the way some MPs and peers used their parliamentary privilege to breach court orders.

He said the internet had "by no means the same degree of intrusion into privacy as the story being emblazoned on the front pages of newspapers", which "people trust more". However, he warned that modern technology was "totally out of control" and society should consider ways to bring Twitter and other websites under control.

Yesterday Richard Walker, editor of the Sunday Herald, said: "It seems to us a ludicrous situation where we are supposed to keep from our readers the identity of someone who anybody can find out on the internet at the click of a mouse."

Timeline: Courts' cover blown

2009

n October: An injunction brought against the Guardian newspaper by oil trader Trafigura is lifted. The order covered a parliamentary question asked by Paul Farrelly MP and had stopped the newspaper identifying the MP and details of the question.

2010

n January: An injunction stopping the media reporting allegations about England football captain John Terry's private life is lifted by the High Court a week after it was granted.

n April: A super-injunction is granted to Take That star Howard Donald against a former girlfriend, Adakini Ntuli. It was lifted by Court of Appeal in November.

2011

• March: Liberal Democrat MP John Hemming used the protection of parliamentary privilege to reveal the existence of an injunction that banned a man from talking about court proceedings in which he was involved, including to his MP. Mr Hemming also revealed that former RBS chief Sir Fred Goodwin had obtained an injunction banning the media from calling him a banker.

• 26 April: BBC journalist Andrew Marr revealed that he obtained a super-injunction in 2008 to prevent reporting of an extra-marital affair. He says he is "embarrassed" by the order.

• 10 May: A Twitter user publishes names of people the user claims have obtained injunctions, highlighting the problem of gagging orders potentially being ignored by internet users.

• 13 May: A blogger publishes the full text of an injunction online as a protest against gagging orders

• 19 May: Liberal Democrat peer Lord Stoneham reveals during a debate in the House of Lords that Sir Fred Goodwin obtained an injunction to stop reporting of the fact that he had a sexual relationship. The injunction is later lifted in court.

• A total of 18 privacy injunctions have been granted in 2011 already, compared with just five in 2005. A further 12 super-injunctions, which ban the media from referring even to their existence, have also ben granted.

• A recent report found that nine footballers, nine actors, four pop stars, six wealthy businessmen and women, a senior civil servant and an MP have obtained injunctions. Schillings, the media law firm, has obtained more than 20 of the orders and been paid an estimated 2 million.

• One super-injunction is so binding that even the judge can be referred to only as Mr Justice XXXX.