ASBO beer mats set alarm bells ringing, says Peter Coulson

There's a great vogue at present for "naming and shaming" in many different areas - food hygiene, polluters, rogue traders and so forth.

All this is very praiseworthy, if it helps to protect licensees and customers. But it can have unexpected repercussions.

The greatest care must be taken if you or your colleagues decide to publish the identities of so-called troublemakers. I see that a northern Pubwatch scheme, with the assistance of the local council, is putting photographs of undesirables on beer mats, so that people will recognise them and report them if they try to enter a pub from which they have been banned.

This immediately rings warning bells with me. I am sure that the local council involved has taken legal advice. The people concerned are currently the subject of anti-social behaviour orders (ASBOs), so there is a legal basis for identifying them in the short term. But what happens if and when the ASBO is lifted, or if they appeal against the making of an order?

You see, there are human rights issues here. A beer mat can linger around for a long time. It is not directly under the control of the licensee or his staff. There is no indication that those involved in the Pubwatch scheme have been given any directions or instructions on when to remove them. In any case, there is no doubt that these will become collectors' items - tegestology, I think it is called; so they will probably be removed from the pub and could be placed elsewhere, even on display.

Some years ago there was a high-level discussion on whether the photograph of a person who was the subject of an exclusion order under the Ban the Thugs Act should be circulated in addition to a description, to assist licensees in identifying them. The then Home Office minister Charles Wardle mentioned the possibility in a speech to the BII. But even then the whole idea was that the photograph should be kept out of sight of customers, to avoid the risk of defamation.

Where accusations have been made against an individual, without corroborative evidence, or where a local Pubwatch has decided to exclude someone (which at common law they are perfectly entitled to do) then the greatest care must be taken to ensure that everything is done properly. There have been instances of individuals taking legal action against a licensee in respect of an "unwarranted" allegation, although the right to ban an individual still exists and may be upheld.

But human rights legislation has a major part to play in this. An increasing number of cases are relying on aspects of this branch of the law, where an individual loses some right or other as a result of a legal or even an unofficial ban. Some may argue that the widespread publication of an individual's photograph in this way, on something like a beer mat, is disproportionate and should not be allowed.

The problem here is that licensees, full of righteous indignation at anti-social behaviour, might fail to recognise that you cannot risk making a mistake and issuing defamatory material that may land them in court with a claim for substantial damages. Lawyers are becoming increasingly aware of the financial repercussions of making an untrue allegation, and local councils have themselves been in the firing line recently in this regard.

The moral is to check very carefully with your own lawyers as to what you can and cannot do, and to ask those involved in a local scheme such as Pubwatch whether they have checked the legality and are happy with the way the issues are being publicised.