An escalating privacy battle between celebrities and users of social media websites took an unexpected turn on Sunday when a Scottish newspaper printed a front-page photograph of a footballer who is alleged to have had an affair with a model.
Despite an injunction lodged in England, the Sunday Herald carried a full-page picture of the footballer, with a thin black band across his eyes and the word "censored" in capital letters. The player is easily recognisable and the caption below the photograph read: "Everyone knows that 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 ..." In an accompanying article the paper named a footballer as the subject of speculation on Twitter.
The development is the latest twist in a spiralling battle over privacy and freedom of speech that – until now – has mainly played out online. Last week lawyers acting for a footballer launched legal proceedings against Twitter after a number of people claimed to have revealed the player's identity on the site. At the same time the lord chief justice, Lord Judge, warned "modern technology was totally out of control" and, called for those who "peddle lies" on the internet to be fined.
In a separate development, the attorney general, Dominic Grieve, has reportedly been asked by another judge to consider a criminal prosecution against a journalist who allegedly used Twitter to name a different footballer in breach of a privacy injunction. The attorney general's office said it would "consider the matter carefully" but added it had yet to receive the request. The editor of the Sunday Herald said he had taken the decision to identify the footballer just hours before the paper went to press, following legal advice that the privacy injunction did not apply in Scotland.
"We had a big package in the paper about privacy laws," Richard Walker said. "We were looking at how we would portray that on the front page and thought maybe [the footballer] pixellated. But then it occurred to me that the injunction would not be in force in Scotland so I took legal advice and the advice was that that was indeed the case."
Walker said that he had not been approached by the footballer's lawyers, adding that the newspaper was not publishing the story onlineand, as no copies were distributed in England, he was confident the existing injunction did not apply in Scotland.
Lawyers acting on behalf of the footballer declined to comment on the story but there were conflicting views on the newspaper's decision among legal experts.
Campbell Deane, a partner at Scottish media law firm, Bannatyne Kirkwood France & Co, said that it was possible for Scottish news outlets to be in breach of an English injunction "if they know about what the injunction concerns." Adding: "Arguing that it wasn't served on you when you are aware of it simply isn't a defence."
"It was a bold, if somewhat surprising, decision to publish such information, knowing what the injunction restricted," said Campbell. "Such actions could expose the paper to costly legal proceedings, with the added possibility of personal sanctions against the paper's directors. It may however bolster the argument that the player's identity is further in the public domain making a renewed challenge to the injunction more likely."
But Paul McBride, a QC at Black chambers in Edinburgh, who provided the newspaper with legal advice, said: "English law injunctions do not have jurisdiction in Scotland. If a party wanted to restrict the Scottish press, as well as the English, it would need to undertake parallel legal proceedings in Scotland, in order to obtain an "interdict". This did not happen in the present case and so the Scottish press is not bound by the English injunction." --- Read More