Margo MacDonald: Who's to judge rights and wrongs of law?

Right from the start, can we get the terminology correct? It's not an exercise in legal nit-picking to remind people that no matter how sound a plea is made to the judge for an injunction, in Scotland even the most gifted pleader would fail . . . because under Scots law, an interdict is what will halt the secrets of the rich and famous being printed in newspapers.

Similar legal moves must be made by lawyers on each side of the border because the laws of Scotland are separate from and equal to laws in England and Wales. It is astonishing that such highly paid lawyers, described by their peers as being amongst the finest in England, should forget, or ignore, the need to apply quite separately for an interdict under Scots law to prevent Scottish newspapers from printing allegations about Ryan Giggs' private life.

Was it forgetfulness, or arrogance, on the part of the footballer's legal team that resulted in the Glasgow-based Sunday Herald's confirmation of the story that had been read by thousands of Twitterers on the internet? Has this been another example of the careless assumption of superiority of the society and its institutions south of the border? It sometimes takes a while for Scots to recognise the syndrome, because few of us, if any, would assume the writ of our legal system runs in England.

But there should be no doubt that the Sunday Herald was acting within its legal limits with its front-page, full-face picture of a very thinly-disguised Manchester United star. Whether the familiar tale was important enough to merit the front page is another story, as is the morality of splashing such a personally-damaging revelation. Maybe the reasons for judges in Scotland and England agreeing to grant injunctions and interdicts need to be made public so the hoi poloi can better understand why Sir Fred Goodwin's alleged affair, with the possibility of it having distracted him at a crucial time for RBS, was concealed by an injunction granted by an English judge.

Also, it might be the right time to debate, both in living rooms and the chamber of the Scottish Parliament, when it is right to publicise a public figure's fall from grace, and when, arguably as in the case of Ryan Giggs, the indiscretion, treachery, foolishness, weakness, hubris etc are of no real relevance to the general public.

That most of us love a good gossip, and maybe a good laugh at catching the rich and famous with their pants down, is no basis for having a law that can humiliate and fracture people and families in whose shoes but for the grace of God, or sheer good luck, many of us could be.

There are areas of public life and service that must be open to scrutiny and for which transparency of process is absolutely essential. But these institutions and operations are run by people who are entitled to as much freedom to achieve perfection, fail miserably or plod along complacently in their private lives as everyone else.

The European Convention on Human Rights (ECHR) tries to reconcile these two apparent contradictions. Different lawyers will give different opinions on whether it succeeds. But regardless of individual opinions, it has to be incorporated into English and Scots law . . . until it's changed by the democratic expression of the English and the Scots.

For example, how can someone, anyone, be guaranteed the right to a "family life" and privacy under the law when the law cannot be enforced because of the impossibility of controlling internet communications? As has been demonstrated in the Ryan Giggs story, unless the contributors to Twitter and other social networks voluntarily observe the sort of judgement, self-restraint and equality of treatment as is attempted by ECHR, it makes a nonsense of judges trying to exercise responsibility in the public interest and for the law to forbid newspapers from printing information that is in the public domain.

So how should we deal with the dilemma created at the point where new technological possibilities meet new, uninhibited social attitudes and beliefs? Given the volume of internet traffic emanating from the USA, and its government's recent re-assertion of its interpretation of freedom of speech as it applies to Twitter et al, can we do anything other than promote the idea of behaving towards others as you would have them behave towards you?

It's frustrating that the entire business of how we try to play fair against the background of technology that allows for such potentially destructive and divisive behaviour should sink into a morass of gossip about an alleged adulterous affair. This is about more than Ryan Giggs' alleged fling. It's about who prints all the news that's fit to print . . . and who decides what's not.