Social media tamed? Trepidation in the upper echelons of sports organisationsIain McDonald, Ned Lewis
In November 2012 we wrote a piece for this website which essentially explained why the use of social media by sports people is here to stay. However, there is little doubt that the irresistible march of social media has been met with trepidation in the upper echelons of many sports organisations. As vividly stated by Hugh Morris, Managing Director of the England and Wales Cricket Board, when referring to players' use of social media:
'When [social media is] done poorly it is a complete and utter nightmare for those of us trying to manage and lead teams. It is like giving a machine gun to a monkey.'
No doubt much of this inertia is fuelled by the perception that the social media landscape resembles a "Wild West" of unregulated comment where athletes are often drawn in to tit for tat squabbles by other users hiding under a blanket of anonymity.
However, the reality is that the social media world is migrating from its "Wild West" roots to a more "Native" environment.
While it is ultimately down to the athletes themselves to regulate their own social media output, it is crucial they understand they are not alone in terms of responding to "trolls" who seek to rattle them. Increasingly the law is stepping in to marshal this Wild West – both through innovative use of existing law and embracing new technologies in the conduct of legal proceedings.
At the same time social media platforms are evolving in how they do business with athletes and their representatives and new services providers have sprung up to help shield athletes' pages from trolling.
Organisations who understand this changing of the social media tide – and some of the regulation affecting it – will be best equipped to educate their athletesabout legal remedies at their disposal and remove that "machine gun" from their players' hands.
A Regulated Environment
The law's adaptation to the dangers of unfettered social media comment is perhaps best epitomised by the Crown Prosecution Service's ("CPS") snappily titled Guidelines on Prosecuting Cases Involving Communications Sent by Social Media ("the Guidelines").
The Guidelines' purpose is to build on existing criminal law by applying it in the specific context of social media use. Of most relevance in a sporting context is guidance on:
- the Protection from Harassment Act 1997 which relates to communications that specifically target an individual and which may constitute harassment or stalking; and
- the Malicious Communications Act 1988 and Communications Act 2003 which address comment that may be considered grossly offensive, indecent, obscene or false.
While the Guidelines do not create new law they do show that the CPS is certainly coming to grips with regulating the faceless threat that social media can pose to high profile individuals.
The past year has seen a number of recent examples that highlight the protection the CPS can afford to athletes. Following Fabrice Muamba's collapse during an FA Cup match between Bolton Wanderers and Tottenham Hotspur 21 year old student Liam Stacey was sentenced to 56 days imprisonment under section 127 of the Communications Act 2003 for posting racially aggravated abuse on twitter.
In July 2012, 17 year old Twitter user @Rileyy_69 was arrested under the Malicious Communications Act 1988 and issued with a harassment warning in connection with tweets to Olympic diver Tom Daley. The tweets followed the failure by Daley, and his diving partner Pete Waterfield, to win a medal in the Olympic synchronised 10 metre platform event. Tweets to Daley, who was competing in the Olympics just months after his father's death from a brain tumour, included "You let your dad down i hope you know that" and "i'm going to find you and i'm going to drown you in the pool you cocky twat your a nobody people like you make me sick". (As an aside, the CPS failed to prosecute for crimes against grammar).
While in the Tom Daley case action taken by the CPS fell far short of imposing the maximum £5,000 fine and 6 months' imprisonment available to it under the 1988 Act, there is certainly no doubt that risk of arrest and caution is a strong deterrent to any aspiring trolls intent on spewing such bile at athletes. It is crucial that athletes are taught that when dealing with trolls their initial reaction need not be a hot fingered response but perhaps a call to the police. Additionally it is advisable that organisations foster a close relationship with their local police force to help manage and monitor any abuse received by athletes across social media.
In addition to the protection offered under the criminal law, recent months have seen a stark shift toward high profile figures using civil legal redress to regulate social media output relating to them.
On 2 November 2012 the BBC Newsnight programme broadcast allegations that "a leading Tory politician of the Thatcher era" had been implicated in child sexual abuse. The "leading Tory politician" was identified on twitter before broadcast as Lord McAlpine. His name was widely disseminated on twitter after transmission.
Following the Newsnight story it came to light that the BBC had not accurately verified the allegations against Lord McAlpine and in the high profile fallout from the scandal the BBC settled defamation proceedings initiated against it in the amount of £185,000. Additionally, and interestingly in a social media context, it was reported that Lord McAlpine issued proceedings against 10,000 twitter users who implicated him as the "leading Tory politician".
Since to repeat someone else's libel is itself defamatory, any retweets of the false accusations against Lord McAlpine would be enough to ground an action in defamation. Given the viral nature of the retweet it is unsurprising that so many twitter users were exposed to such proceedings.
Although not directly sports related, it is easy to envisage similar false accusations arising on twitter in relation to sports people and hasty retweets spreading rumour before inaccurate stories have been verified. Again, the use of legal proceedings is a powerful weapon for sports people and organisations as they seek to curb attacks on their reputation by the twittersphere at large.
This recourse to defamation proceedings is potentially reinforced by the courts' innovative approach to serving proceedings against twitter users.
In September 2012, travel agent Thomas Cook was granted permission by the High Court to serve an injunction via twitter on unidentified twitter user @TCXrated, compelling that user to reveal their identity and desist from a campaign of malicious tweeting against the company. In what the company suspected was a case of a disgruntled employee venting frustration, @TCXrated had bombarded the company with unsavoury tweets comparing Thomas Cook workers to "dung beetles pushing s**t around" and "the living dead".
Similar to the Lord McAlpine scenario, it is not difficult to envisage sports people and organisations making use of similar orders where they are subject to malicious abuse from unidentified users.
Finally, in addition to the above legal remedies, athletes and their representatives are now becoming increasingly sophisticated in their attempts to combat online trolling. Software like Syocial developed by social media agency Sports New Media enables athletes to automatically monitor postings on their Facebook page and can instantaneously delete comments containing pre-set key words. This simultaneously enables athletes to protect their feed against both spam and inappropriate content.
However, although software such as Syocial can provide a valuable asset to athletes, it is limited to monitoring feeds on platforms that will allow it to interact with the site's API (application programming interface). At present twitter's API is a closed shop for such software and as a result athletes' twitter feeds remain unmoderated, with other user quotes being incapable of deletion.
Unsurprisingly this represents a danger to athletes in an environment where, as Jae Chalfin (founder of Sports New Media) states, it takes just "one person to change the direction of a conversation and the others all following like lemmings".
Chalfin has said that this inability to control content on twitter has been a contributing factor to some of his clients, including Bradley Wiggins and Jessica Ennis, retreating from twitter and concentrating their social media strategy on facebook. The draw to facebook has been compounded by the fact that twitter "hasn't figured out its model yet" in relation to bringing sponsors on board.
This is surely a worrying trend for Twitter as a continued loss of high profile athletes (and other celebrities) would greatly reduce its attractiveness to users,thus reducing its commercial value to advertisers seeking to cash in on its phenomenal reach. At the same time Chalfin explains that he does not envisage huge adverse commercial implication for athletes who withdraw from twitter and would not advise his clients againstleaving twitter if they sought to do so.
Twitter has traditionally been a vocal advocate of free speech. However, it may increasingly have to balance this ethos with the ability of its stellar users to monitor and regulate malicious and harassing content on their feeds if it wishes to retain them as users.
There is no doubt that professional sports people need to be held accountable for their words and actions on social media. However, equally it should be recognised that a sportsperson is not a professional communicator. Accordingly it is for their clubs, governing bodies and representatives to educate them in terms of the remedies available in the event that they are harassed or subject to abuse. There are both commercial and legal solutions available that should be at the forefront of the athletes' minds. With the general social media landscape maturing it should soon be unforgivable for professional athletes to be drawn in to online spats.
This may be bad news for those of us who love a bit of mudslinging at dawn. But for the organisation who despairs of its"gun toting" stars and their anonymous foes the message should very much be that there is a new Sheriff in town bringing some law and order to the unruly social media frontier.
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About the Author
Iain is an associate at Lewis Silkin. Iain's work involves advising sports clients on commercial issues including broadcasting rights, branding, image rights, sponsorship and performance contracts. He also assists Lewis Silkin's sports employment group with sports governance, compliance and the commercial aspects of player transfer.
Ned is a trainee at city law firm Lewis Silkin LLP, where he has worked on client matters across the Sports, Immigration and Real Estate teams. He previously worked as a paralegal in commercial litigation, and is a long suffering Arsenal fan.