Forgive me this brief moment of “I told you so”ness.
A few weeks ago (26th April) in a spoof post about superinjunction revelations I wrote this,
“Meantime the English judges are purporting to give extra-territorial effect to their injunctions by pronouncing them against the world (and treating every download in ENgland as publication in England allowing them to found jurisdiction for proceedings for breach of the injunction and contempt against those from other countries writing for domestic audiences, using servers held in their own countries – although the legal consequence of this for the publisher in their own jurisdiction are non-existent). The fact that they don’t even apply in Scotland – and a Scottish paper could publish in an edition published and distributed up here, unless appropriate proceedings have been taken in Scotland – seems not to bother the judges. It is a pity that the cases involve [redacted] with other [redacted] or [redacted] with [redacted] and not more serious matters – for it would be a useful reminder to the parties and to the English courts if one of the Scottish papers decided to publish the name of the claimant.”
At the time I had hoped that one of the Scottish papers would name Fred Goodwin given the potential public interest element in his case. But no-one bit – despite a few interesting exchanges on twitter (and off-twitter) with some Scottish journalists.
Of course today the Sunday Herald has identified CTB - plastering his picture across the front page (with his eyes blacked out like those Tony Blair posters the Tories used in 1997). They have a story inside naming him in the headline but carefully avoiding references in the story. I have not been able to see the story in the on-line version of the paper – but the site is struggling to load, no doubt due to the high readership today.
And in the editorial the Sunday Herald points out,
“Today we identify the footballer whose name has been linked to a court superinjunction by thosands of postings 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. [L&G: as the old saying goes, "Aye right"]
“Because we believe it is unfair that the law can not only be used to prevent the publication of information which may be in the public interest but also to prevent the mention of any court order [editorial comment by L&G: mmm, they fall into the error committed by so many here that this is an anonymised injunction not a superinjunction. This error is repeated in the main report of the story. As justifications go this is spurious. There are superinjunctions out there that most journalists and politicians will be familiar with which no-one in the British media reports, and for very good reasons.]
“The so-called superinjunction [L&G: which it isn't] holds no legal force in Scotland where a separate court order is needed. [L&G: and we all know this is the real reason for publication. They wouldn't have done it if they were based in Manchester]“
Before going on to make various comments about freedom of expression and restrictive privacy laws. As a tactic to boost the circulation of a failing newspaper it is an interesting one. Those looking for the potential impact on privacy cases would be well-advised to keep an eye on the Court of Session rolls of court to see if any odd initials or weel kent names start appearing.
Edit add 11 pm to note the following legal developments during the day: Campbell Deane from Bannatyne Kirkwood France & Co argues that Scottish newspapers are bound by English injunctions. This purports to be “the legal view” which will come as a surprise to many (most?) scots lawyers. Deane relies on obiter remarks in the Scottish Spycatcher litigation which was a case on breach of confidence to suggest a Scottish paper could be in contempt of court in relation to an English injunction. This also appears to run counter to the general rules on enforcement of foreign injunctions (especially interim orders) at common law (they weren’t recognised broadly) and under the more recent legislation where new orders are required up here – as was confirmed in the G v Caledonian Newspapers case in 1995.
The Sunday herald had the story legally checked by Paul McBride QC who confirmed the view that every Scots lawyer I know (aside from Mr Deane) took, “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.”