Off the field and on to the feed: tackling racism online - Part 2 of 3

Where to draw the line? Published 04 February 2013 By: Laura Scaife

Off the field and on to the feed: tackling racism online - Part 2 of 3

Another question which has been raised by Twitter, is where to draw the line between innocent posts and what may be considered racist content. A recent example which highlighting this is that of a Young Leeds Fan in Twitter Race Row after making up to look like El Hadji Diouf.  The ten-year-old became embroiled in an online race row after he blacked up to pose with his hero. 

The child then posted a series of pictures on his Twitter account provoking a backlash from users who said he was racist.

The fan met his favourite player outside Elland Road ahead of his team's home game against Bolton Wanderers on New Year's Day. He said Diouf and other Leeds players found the 'costume' - a blacked up face and head, Leeds kit and white mohican - funny. As well as Diouf, the child also posed with Leeds' captain Lee Peltier and players Ryan Hall and Sam Byram. The child also said midfielder Paul Green said to him: 'How cool do you look?'. The fan also posted pictures of him with Leeds United manager Neil Warnock, who he said found it funny, and police officers outside the ground. 

Ahead of the game he tweeted: 'Theres only 2 El-Hadji Dioufs...this is how I've come dressed today.' After the pictures were posted, Twitter users took to the social networking site accusing the child of racism.  One user called @JacobKing7 wrote: 'This is a touching photo mixed with a touch of racism',. and @greatbearbert wrote: 'Wrong on so many levels!' Some questioned why a child was allowed to wear black make-up in the first place, with others saying the picture made them uncomfortable. However, many people defended the child. Norwich City footballer Robert Snodgrass wrote: 'Can't a kid dress up as one of his favourite players these days without people moaning. We were kids once.'

The primary school child said he did not realise it would be offensive and did it as a tribute to his footballing hero. The boy's father was forced to take to his son's Twitter account to defend him from accusations of racism.

He wrote: 'I want to apologise if [my son] dressing up has caused offence. 'He asked to dress up as Diouf so we let him for a bit of fun. We completely underestimated the response it would get. Hes only 10 and likes the banter so lay off please thanks for positive comments'.

The child also later took to the social networking site to defend himself and said he is not racist. He wrote: 'Some pl on here think im racist for going todays game fancy dress loke diouf he loves it all the players do loads of fand been taking pics.' He also said 'its a bit of fun' and claimed the footballer wanted the picture on his phone and took one himself. He said: 'Im a big leeds fan and love diouf.'

Although the issue was not pursued by the authorities it did create a great deal of press and the “real time issue” was compounded and carried on by the use of Twitter. The example also highlights the very great differences of opinion as to what amounts to racist content, bringing in player, police and fan opinion which were at variance. The only views not on offer were that of the club itself and the FA. Although in this example the issue did not become hotly contested or escalate there is no guarantee that in the future this will always be the case and which is why there needs to be some sort of intervention or industry driven initiative to tackle the issue through a formally appointed process.

 

Who is the Regulator?

 

Platform Providers

Some may query whether a solution to the issue is to look to Twitter itself to police the issue and that the industry does not have a role to play. Twitter for example already has under its Terms (which can be found at https://twitter.com/tos) at point number 8 certain “Restrictions on Content and Use of the Services” which operate as a policy by Twitter of operating its site in a way that satisfies applicable laws and regulations. However section 4 of Twitters policy, entitled “Contents of the Service”, which contains a free speech policy, stating that it will not interfere in disputes or restrict what it describes as “controversial content”. Because the rules is not clear,  What is clear is that clubs will need to carefully consider how to afford the correct weight to an individual’s right to freedom of expression and address the potential risk that by self regulating, the private body will be able to decide what standard they feel apply in relation to taking decisions over content. While the immediate danger may appear that the regulators will not do enough to police their sites there is a converse risk that if the platform providers or search engines are quick to respond to complaints, this may create a feeling amongst users that too little weight is being afforded to the protection of an individuals expression and simply moderate site content because there has been an open objection to it. This risk could be avoided by a requirement that a court order be obtained to establish some element of illegality or evidence of harm. However, by doing so the benchmark of demonstrating that harm had been caused could be set too high for most complainants to find use of it given factors such as the resources required to fund the acquire such an order. This may prove to be a very real consideration for clubs and most especially affect those in the lower leagues.

 

Players

Another avenue to consider and of particular application to racist remarks made by players against other professionals or fans is to enforce clauses in their employment contracts. Just like any other employee/employer relationship, the policy should set out what players can and should not comment on and needs to be communicated to players effectively. In order to do this it is important for clubs to educate their players as to the potential pitfalls of inappropriate use of social media and the likely sanctions they will face for non-compliance such as a ban from playing as well as fines from the governing body or players club. 

However, it needs to be recognised that social media law is not an area which clubs should “dabble” which is why qualified individuals with a sophisticated knowledge of online regulation need to be allowed to deal with the issue from a central body free from club considerations, drawing on clubs media and marketing teams as and when necessary, rather than led by them, thereby maintaining their impartiality from individual club politics and business cases. Indeed players (and perhaps marketing teams) should also be aware that sanctions do not end at the club doors; there may potentially be serious legal consequences arising out of their posts such as claims for defamation or racial abuse. After Arsenal Football Clubs midfielder Emmanuel Frimpong sustained a serious knee injury sustained while on loan at Wolves, Frimpong posted a message on his official Twitter account which read "if you going church today Pray For me Giving today A Miss", the Gunners midfielder retweeted a response from one Tottenham fan which read: "I prayed you break your arms and legs", to which Frimpong replied "Scum Yid". 

In the Frimpong example despite removing the comment shortly afterwards, the comment did not escape the watchful eye of the FA. Frimpong however could have ended up falling foul of the criminal law with the potential for prosecution under s127(1) (a) of the Communications Act 2003. Under s127 (a), a person is guilty of an offence (punishable under s127 (3) by up to six months’ imprisonment or a fine, or both) if they send “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” by means of a public electronic communications network. This inevitably raises the question of what is to be considered grossly offensive, or what is of an indecent, obscene or menacing character. In DPP v Collins ([2006] UKHL 40), Mr Collins made a number of racist phone calls to the offices of his local MP. In considering if an offense had been committed under s127(1)(a), the House of Lords considered the standards of an open and just multi-racial society, taking into account the context of the words and all relevant circumstances. This involved considering reasonably enlightened contemporary standards applied to the particular message sent, in its particular context, to see if its contents was liable to cause gross offence to those to whom it related, or to be aware that they may be taken to do so (DPP v Collins ([2006] UKHL 40 at [9]). If Frimpong had posted a series or string of tweets in the heat of the moment, he may also have increased his exposure to prosecution under the Crime and Disorder Act 1998. 

The potential exposure for the club to damage due to the offensive content of the Tweet was significant, especially given the large proportion of Jewish fans at the north London club. The Frimpong Tweets also highlight that that sanctions or apologies may not always be enough, in a sense they shut the door once the horse has bolted. Clubs need to communicate to players in manner that they clearly understand that their posts can be potentially damaging the clubs brand, exposing it to unacceptable reputational risk which could lead to a loss of confidence on the part of both fans and sponsors alike. It is suggested that clubs should be allowed to deal with these issues, that is crisis management and reputational risk and the FA should focus on any potential regulatory issues or criminal sanctions.

In Part 3 I will look at what action can be taken by The Football Association.

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Author

Laura Scaife

Laura Scaife

Laura is an innovative thinker in the field of Social Media and has been extensively published on matters concerning compliance with e-commerce issues arising out of the Office of Fair Trading and Advertising Standard Agency guidelines as well as online revenue generation, defamation, electronic communications based offences, effective dispute settlement, business crisis management and reputational management.

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