Picture the scene, twenty or so years from now, in one of two alternative realities. [Cue wistful music.]
“Dad, what did you do in the fight for Scottish independence?”
“Well, son, I wrote some killer comments on the internet and decorated a bollard.”
“Dad, what did you do in the fight for the Union?”
“Well, son, I feigned offence to cybernattery and stuck a sticker on a pelican crossing.”
Welcome to my parody of the Scottish independence referendum. (Better parodies are available elsewhere.) What has triggered my parody? The photo at the beginning of this blog might be a clue, as might this photo from the east of Edinburgh (tweeted by Kezia Dugdale MSP)…
I have no doubt other examples of stickering could be found. I found my example outside Marischal College in Aberdeen.
Suppose for a moment we are in a Scots law exam of some sort. To adopt the lingo, quid iuris?
If the stickered property was owned by the person affixing the sticker, there is no problem, subject of course to the caveat that the message was not somehow defamatory or otherwise illegal. (That caveat is not relevant here.)
I think it is fair to assume that the sticker-er in each instance did not own the stickered property, which might theoretically open up the possibility of a charge for vandalism (under statute) or malicious mischief (under common law). “Defences” that might be deployed by the sticker wielder might be: 1) the owner consented (that logic being relevant when you have parked in a monitored car-park with terms and conditions displayed to users, but a driver parks without complying with those ts & cs); or 2) that this was a manifestation of freedom of expression, an important political right. Neither of these seems particularly relevant here. You can express yourself freely with “Yes” or “Better Together” clothing or a badge, but availing yourself of someone else’s property is not really on: I would be as entitled to object to an unsolicited “I LOVE BELINDA CARLISLE” sticker on my front window as I would be to an unsolicited “VOTE UKIP” sticker. (No offence to Belinda Carlisle.)
So that is the law, what of the situation in practice? My tweeted picture of a pristine Better Together sticker overlaying a tatty “2014” Saltire led to some correspondence with Aberdeen City councillors and a report in the Evening Express. I was contacted for a quote and the story appeared on Saturday 10 May 2014. (As far as I am aware there is no freely available online resource of the paper.) An extract from the report follows:
Malcolm Combe, an academic lawyer at the University of Aberdeen, has highlighted instances of fly posting around the city to the authorities.
He said: “As a lawyer, I feel if it’s someone else’s property then you shouldn’t be interfering with it.
“Vandalism may keep happening. This could be a starting point for larger instances of this happening but hopefully a stop will be put to it.
“People should simply wear a badge rather than fly posting.”
I appreciate it may seem a little strange to be quoting myself, and it might be a bit generous to describe my tweet as highlighting the issue to the authorities, but that is to quibble. I certainly said something along those lines, although I think the interviewer was more interested in the idea of this being the beginning of something bigger than I was. When asked about that possibility, I did muse that there was a “thin end of the wedge”-type argument that could be run, but I would be unpleasantly surprised if this did spiral into something bigger.
To conclude, the key and rather obvious point for a property lawyer to make is that you should not be interfering with someone else’s property, even if you really believe in a cause so much as to make you want to spread your message far and wide. What I parodied as a “fight” at the beginning of this blog might not become the stuff of ballads in days to come or win comparisons to other sovereign movements, but that does not change the perfectly clear point of law that is part of the scheme that should serve to keep the Scottish independence debate as civil as it has been to date.
All that said, and before anyone asks, I fully accept there are sometimes more important issues in the world to get worked up about than stickers.