Commentary on Sections The inquiry Section 22 – Publishing restrictions in relation to children
65.Section 22 allows the sheriff to prohibit publication of material that could identify a child involved in an FAI. This is a restatement of section 4(4) of the 1976 Act, except that “child” now means a person who has yet to reach the age of 18 years. The prohibited material which may lead to identification of the child includes, but is not limited to, the items listed in subsection (3). Under subsection (4), the sheriff may make such an order on his or her own initiative or on the application of the procurator fiscal or a participant in the FAI. Failure to comply with the sheriff’s order constitutes an offence under subsection (5), the penalty for which is set out in paragraph (6). The 2016 Act recognises that some of those involved in the process of publishing, such as a newspaper distributor or retailer, may not be aware that the content of the publication is in breach of such an order and provides for a defence. The definitions of “publish” and “material” in subsection (8) are wide and include material published online. The Scottish Government proposes that the Order under section 104 of the Scotland Act 1998 will extend the effect of publishing restrictions to England and Wales and Northern Ireland; this is consistent with the previous position under section 4(4) of the 1976 Act.