Newspaper faces court for naming footballer

A SCOTTISH newspaper could face prosecution for breaching a courtorder after it identified a footballer accused of using the courtsto keep allegations of a sexual affair secret.Newspapers across theUK have been prevented from naming the player after he obtained asuper-injunction to protect his private life following an allegedaffair with former Big Brother contestant Imogen Thomas.Butyesterday the Sunday Herald published a thinly concealed front pagephotograph of the player, printing his face with his eyes blackedout and the word "censored" over the top.In an editorial thenewspaper 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, thepaper's editor, journalists and directors could face prosecution forcontempt of court and possibly go to prison.The development is thelatest twist in a spiralling battle over privacy and freedom ofspeech that - until now - has mainly played out online.The Attorney-General's office last night said it would investigate thepublication if it received a request to do so."As with allreferrals, the Attorney will consider the matter carefully, and takeaction if necessary."Although the Attorney does not have a generalenforcement role in regard to civil injunctions, he may bringproceedings in circumstances where public interest warrants it.Normally the aggrieved party would be expected to bring proceedingsto protect their interests."Last night Schillings, the legal firmthat represents the player, said it was considering what action totake.As the firm has already successfully asked a judge to refer anunnamed journalist to the Attorney-General for possible prosecutionin the case of another footballer, the same fate could await theSunday Herald.However, if action is not taken against the SundayHerald it could open the floodgates for Scottish papers to publishdetails of other injunctions sought in England.The footballer hasbeen named in tens of thousands of messages on the Twitter micro-blogging site, run by a California-based company.The Sunday Heraldsaid it was "unsustainable" for newspapers not to be able to printinformation that is available on the internet. Beneath the front-page picture published yesterday were the words: "Everyone knowsthis is the footballer accused of using the courts to keepallegations of a sexual affair secret. But we weren't supposed totell you that."The newspaper named the player in an inside story.Theinjunction was originally issued to gag Imogen Thomas and the mediafrom naming the player over an alleged affair.It is thought that theSun and Ms Thomas are now likely to use the publication of theplayer's name in an attempt to overturn the original injunction.Thelatest move has divided legal opinion in Scotland.Mr Deane pointedout that the Spycatcher ruling in 1991 against the Sunday Times hadestablished a principle that knowledge of the injunction was thecrucial factor, not whether it had been served on the newspaper.Hesaid: "If the paper was absolutely sure of its position, why didn'tit publish the names of all the other super-injunctions, none ofwhich have been served in Scotland?"I suspect that if the roles werereversed and a Scottish judge's ruling was ignored this way inEngland the Scottish judge would be seething."However, top QC PaulMcBride, who specialises in criminal law and advised the SundayHerald, insisted the injunction did not apply in Scotland.He said:"They forget that Scotland has an entirely separate legal systemwhich makes its own judgments. They think that their rulings affectthe world when in reality it is just England and relatedjurisdictions."Basically the footballer's lawyers forgot that theyshould take out an interdict in Scotland, and that allowed theSunday Herald to publish."They can call it a super-duper-injunction. If they don't have an interdict in Scotland it isworthless."He said publication was a point of principle andhighlighted the different rules that govern the internet and themedia."It is ridiculous to suggest that a newspaper with acirculation of about 30,000 can be prosecuted when I could go to aninternet cafe and tweet the details anonymously to millions ofpeople. If the paper is prosecuted it will completely undermine thepublic's confidence in the judicial system."The two lawyers alsodisagreed over whether the ruling would open the floodgates forScottish papers to publish details of injunctions made in England.MrMcBride said it would, because it would highlight that the two legalsystems are separate, while Mr Deane suggested that the case waslikely to be tested in the English courts.Last week former RBS chiefSir Fred Goodwin had to abandon his own super-injunction related toan affair with a colleague after he was named in the House of Lordsby Lord Stoneham, who was protected by parliamentary privilege.Andlast month the broadcaster and political commentator Andrew Marralso had to abandon a super-injunction.The footballer identified bythe Sunday Herald has been regularly named on Twitter and his legalrepresentatives have taken action against the Californian companyand "persons unknown".He has also been identified in the Spanishpress.Last week a committee chaired by Lord Neuberger, the mostsenior civil judge in England and Wales, said the internet "does addto difficulties of enforcement at the moment" and criticised the waysome MPs and peers used their parliamentary privilege to breachcourt orders.He said the internet had "by no means the same degreeof intrusion into privacy as the story being emblazoned on the frontpages of newspapers", which "people trust more". However, he warnedthat modern technology was "totally out of control" and societyshould consider ways to bring Twitter and other websites undercontrol.Yesterday Richard Walker, editor of the Sunday Herald, said:"It seems to us a ludicrous situation where we are supposed to keepfrom our readers the identity of someone who anybody can find out onthe internet at the click of a mouse."Timeline: Courts' coverblown2009October: An injunction brought against the Guardiannewspaper by oil trader Trafigura is lifted. The order covered aparliamentary question asked by Paul Farrelly MP and had stopped thenewspaper identifying the MP and details of thequestion.2010January: An injunction stopping the media reportingallegations about England football captain John Terry's private lifeis lifted by the High Court a week after it was granted.April: Asuper-injunction is granted to Take That star Howard Donald againsta former girlfriend, Adakini Ntuli. It was lifted by Court of Appealin November.2011:March: Liberal Democrat MP John Hemming used theprotection of parliamentary privilege to reveal the existence of aninjunction that banned a man from talking about court proceedings inwhich he was involved, including to his MP. Mr Hemming also revealedthat former RBS chief Sir Fred Goodwin had obtained an injunctionbanning the media from calling him a banker.26 April: BBC journalistAndrew Marr revealed that he obtained a super-injunction in 2008 toprevent reporting of an extra-marital affair. He says he is"embarrassed" by the order.10 May: A Twitter user publishes names ofpeople the user claims have obtained injunctions, highlighting theproblem of gagging orders potentially being ignored by internetusers.13 May: A blogger publishes the full text of an injunctiononline as a protest against gagging orders19 May: Liberal Democratpeer Lord Stoneham reveals during a debate in the House of Lordsthat Sir Fred Goodwin obtained an injunction to stop reporting ofthe fact that he had a sexual relationship. The injunction is laterlifted in court.A total of 18 privacy injunctions have been grantedin 2011 already, compared with just five in 2005. A further 12 super-injunctions, which ban the media from referring even to theirexistence, have also ben granted.A recent report found that ninefootballers, nine actors, four pop stars, six wealthy businessmenand women, a senior civil servant and an MP have obtainedinjunctions. Schillings, the media law firm, has obtained more than20 of the orders and been paid an estimated GBP2 million.One super-injunction is so binding that even the judge can be referred to onlyas Mr Justice XXXX.