UPDATED version, from 13.54 today….Accompanied by a thinly-disgused cover photograph of the person in question, The Sunday Herald has today named a footballer alleged to have used the courts to keep allegations of a sexual affair secret.
Although the person’s identity had been protected by a super injunction issued by the courts in London, the Sunday Herald claims it would not be subject to prosecution as …”the so-called super injunction holds no legal force in Scotland, where a separate court order is needed”.
In an editorial article on page 34, the news magazine says: “We should point out immediately that we are not accusing the footballer concerned of any misdeed. Whether the allegations against him are true or not has no relevance to this debate.”
The name of the player has already appeared on the internet, by an estimated thousands of postings on Twitter over the past few days.
The front page picture carries only a thin black band across the eyes of the footballer, accompanined by the single word, ‘Censored’. It gives over pages 12 to 16 to an analysis feature, mainly written by Vicky Allan, headlined, ‘Sex, lies and privacy laws’, including a focus on the various Tweets, pointing out: “It is social media’s Spartacus moment. In an act of defiance and solidarity, thousands of Twitter users yesterday tweeted the name of the professional footballer they believe is taking action against the micro-blogging site and its users.”
Allan adds: “All that is known for sure is that a footballer has asked for the IP [internet protocol] and email addresses of Twitter users. If he is successful, it raises questions over the future of free speech on social media sites.”
Under the heading, ‘Privacy laws go far enough’, the Sunday Herald’s editorial reads: “Today we identify the footballer whose name has been linked to a court super injunction by thousands of posting on Twitter. Why?
“Because we believe it unsustainable that the law can be used to prevent newspapers from publishing information that readers can access on the internet at the click of a mouse.
“Because we believe it unfair that the law can not only be used to prevent the publication of information but also to prevent any mention of such a court order.
“The so-called super injunction holds no legal force in Scotland, where a separate court order is needed.
“We should point out immediately that we are not accusing the footballer concerned of any misdeed. Whether the allegations against him are true or not has no relevance to this debate.
“The issue is one of freedom of information and of a growing argument in favour of more restrictive privacy laws.
“Extra restrictions are not necessary. Indeed, it could be argued that the existing laws in force in Scotland and south of the Border can already make it difficult to publish information which is arguably in the public interest.
“Even those laws look increasingly under pressure in an age where the internet, for good or for ill, can disseminate information without restriction in seconds.”
Reports an article on Sky News website, of the Sunday Herald’s action: “Technically, the newspaper is free to publish the footballer’s name, as the injunction does not apply in Scotland.
“However most publications have not exploited this opportunity, because of the possibility that copies would be sold south of the border.”
But The Guardian, in its reporting of the story, declines to even identify the paper, “for legal reasons”.
Adds Alex Massie, on The Spectator website: “Careless of … lawyers to forget to apply for an interdict at the Court of Session in Edinburgh. All Scottish papers have therefore been free to publish these details. If they haven’t it’s because they also sell (a few) copies south of the border. One trusts, then, that the Sunday Herald’s circulation manager has insisted no stray copies have been sent to Berwick or Longtown or Cornhill-on-Tweed.
“Whether a judge would hold the Sunday Herald in breach of the English court’s order if someone were to purchase a copy of today’s paper in Glasgow and then take it into England where it might be read by other people is, I suppose, a matter of fine legal distinction and one for readers who are learned friends to discuss. It would seem loopy to blame the newspaper for this but then again this is often a loopy world.”
The BBC website continues: ”In recent weeks there has been heightened scrutiny of gagging orders such as injunctions and so-called super-injunctions – court orders that prevent the media from revealing even the fact that an injunction has been granted.
“In its editorial explaining the move, the Scottish Herald said it named the sportsman being linked to the injunction on Twitter because it was ‘unsustainable’ for newspapers to be prevented from sharing information which is easily available on the internet.”
The story was leading both BBC TV News and Sky TV News bulletins by this afternoon.
The paper’s editor, Richard Walker, appeared on BBC TV News to defend his decision and made it clear that he did not see any legal threat to his paper
Walker told BBC TV: “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, and in fact many people have already done so.”
He added that he had taken extensive legal advice and was not expecting any legal consequences because the injunction was not valid in Scotland – only in England.
His paper, he said, was not published, distributed or sold in England.
It being thus far not possible to verify, by virtue of not uploading (no doubt to sheer volume of traffic), the heraldscotland website is understood to have been extremely careful in neither mentioning the footballer nor showing a copy of the Sunday Herald front page.
Glasgow QC, Paul McBride, the paper’s legal adviser, was also interviewed by BBC TV News, and pointed out: “Every child in the country with a mobile phone can now access Twitter or the internet and find out who this individual is, and the idea that the media cannot report it is frankly absurd.”
Asked whether the front page would increase newspaper sales, he said the decision to publish was “not taken on commercial grounds but on grounds of principle”.
“We have the right of freedom of expression and the right to debate these issues. I think the publication in today’s paper will bring the matter to a head.”