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Making English injunctions apply in Scotland will be easy – expert

Bad news for Scottish publishers

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Extending English injunctions to Scotland would be a "small step" that could result in Scottish publishers facing contempt of court charges, according to one legal expert.

England and Wales court orders are not directly enforceable in Scotland but a Scottish court could extend the ban if it was asked to said David Woods, a litigation expert at Pinsent Masons, the law firm behind OUT-LAW.COM.

"Orders from the courts in England and Wales cannot be directly enforced in Scotland, but I would imagine it is very likely that a Scottish court would agree to steps being taken to enforce it in Scotland," David Woods said. "It is a relatively small step for someone to take and it is just a matter of jurisdiction."

Newspapers in Scotland that had published material that was the subject of injunctions would be barred from publishing the material from that date on. The extension would not make them guilty of contempt for past publication, Woods said.

On Sunday the Glasgow-based Sunday Herald published the alleged identity of the footballer at the centre of a privacy row. He is alleged to have had an extra-marital affair with reality televisions participant Imogen Thomas.

The Sunday Herald said the court order did not apply in Scotland and that it had named the footballer because it was "unsustainable" for newspapers to be restricted from revealing information that was already available online.

"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 Sunday Herald editorial said. "The issue is one of freedom of information and of a growing argument in favour of more restrictive privacy laws."

The paper did not reproduce the photographs and article that named the footballer on its website.

At the weekend Twitter experienced a surge from users who named the footballer. The activity came after a court granted a request by the footballer to ask Twitter to reveal the identity of people who had used the site to name him as the man behind the injunction.

Recently an anonymous Twitter user posted alleged details about celebrities' private lives and claimed to identify them as holding super-injunctions which banned their names from being revealed.

The UK Attorney General's Office, which has responsibility for contempt of court cases, said it would only intervene in civil proceedings if it was in the public interest to do so and said that it had received no complaints about the Sunday Herald's publication.

"We are aware of the publication in Scotland which has attracted attention but have not yet seen the injunction or had a referral so it is not appropriate to comment further at this stage," a spokesman for the Attorney General told OUT-LAW.

A journalist is reportedly facing prosecution for naming another footballer who had a privacy injunction in place, a report on the Press Gazette websites says.

The journalist is alleged to have named the footballer on Twitter and the Attorney General is apparently considering whether to press contempt of court charges against him, the Press Gazette said.

On Friday a report published by a Committee led by the Master of the Rolls into the use of injunctions criticised the number of privacy injunctions issued by courts and called for more openness for journalists to attend court proceedings where banning orders exist.

The report also recommended that the media be informed when people apply for court orders against them.

Privacy injunctions against newspapers are "unfair" and "unsustainable", Prime Minister David Cameron told ITV programme Daybreak yesterday.

Cameron said Parliament had to think how best to address privacy and freedom of speech contradictions and said that he was considering giving the Press Complaints Commission more powers to govern the issue.

Alex Salmond, Scotland's First Minister, told BBC Radio 4's Today programme that injunctions were becoming "impractical".

"The law essentially is a practical thing. It looks to me like the English law, English injunctions, look increasingly impractical in the modern world," Salmond told the programme.

Last week Culture Secretary Jeremy Hunt said that the UK would not introduce a new privacy law. Hunt previously referred to Twitter and the internet as "making a mockery" of UK laws on court injunctions.

The Human Rights Act implements the European Convention on Human Rights into UK law and guarantees a person's right to a private life as well as the right to freedom of expression. Judges weigh up whether it is in the public interest to know details of someone's private life when considering whether to impose a privacy injunction that would ban the details emerging.

The European Court of Human Rights recently rejected a case brought by Max Mosley, the former motor racing boss, which would have forced media editors to tell people before publishing details about their private lives.

Read the Press Gazette report here.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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