Social media and reputation management - what’s over the marksman’s line?

Published 29 April 2013 By: Laura Scaife

Thiago Silva of Brazil

In the first two parts of this blog we have explored the right to be offensive and the right to be offenses, however it is difficult to know where banter ands and criminal liability begins. 

While cases such as Cryer, and other examples of controversial Tweets such as the naming of the victim raped by Sheffield United Striker Ched Evans, which resulted in 13 prosecutions, clearly involved sensitive topics and the potential for distress and psychological damage to the victim was significant, so that the offense element can be reasonably understood by the average person, with other subjects, what amounts to grossly offensive or distressing may not be so clear cut. What of comments regarding weight or appearance which were partially the subject of the Barton Tweets? Wayne and Colleen Rooney have been the recipients of such negative comments on Twitter, but whether such comments in the future would lead to criminal charges is yet to be seen. It also raises the question as to at what point humour will potentially become prosecutable under the Act. Frankie Boyle, known for his dark comedy style took to his Twitter page last summer, to write about Olympic swimmer Rebecca Adlington "I worry that Rebecca Adlington will have an unfair advantage in the swimming by possessing a dolphin's face." Will comedians too potentially face criminal charges in the future? Joey Barton is known for his frank Tweets and despite the distaste it must be considered carefully if they fall into a category of gross offence. However the additional comments about gender reassignment could cast a different light on his Tweets. The reason for this is that significantly it needs to be noted that under the Act, those who are grossly offended by the message or posts in question need not be the intended recipients (see also DPP v Collins above). Inevitably this raises the issue of how sophisticated account holders knowledge is of the regulatory landscape of sites which are sent as an extension of the organization and fulfillment of their social lives which may be perceived by them as “private


Reputational Management

In light of the above it is prudent for individuals to consider their reputation and “personal brand objectives and take responsibility for their digital presence and undertaking the following Twitter “stocktake”. It should be noted that this will be especially important for those who have had a Twitter account for a long period of time and come to public life quickly such as rising football stars. The following could be considered as part of this process:

  1. Familiarisation with Sponsorship contracts and terms of employment to see what may or may not be permitted on social media channels;
  2. Regularly review the content of their personal social media channels; 
  3. Ensure all privacy settings are up to date;
  4. Understand where the line between professional ends and private begins;
  5. Logout of social media platforms when not at the computer; and
  6. Think before uploading content as they may not be able to control who reads it.
  7. Delete anything they do not want to be associated with.


Damage Limitation

Whilst implementing, designing and enforcing an effective social media strategy may help to limit exposure to risk, it is inevitable that situations will arise where unsuitable comments/links or photos have been posted and come to light in ways the individual did not intend or foresee. In these situations the individual should have a clear and detailed damage limitation plan that should be implemented as soon as possible. While the damage may not be fully contained as it is likely to have been captured or re-tweeted, it is imperative to minimise the damage/publicity as far as possible as it is often the case that it is how a situation is handled rather that the situation itself which is remembered by the public and fuels media interest e.g. Suarez and surrounding allegations of racism which ran on for much longer than necessary.

In order to deal with these situations, dedicated social media representatives should be utilized to respond in an appropriate manner to the situation. In an example involving Ryan Babel, who posted an offensive Tweet and photograph of the referee wearing the opposing teams kit on his account @RyanBabel, after a decision didn’t go his way, in addition to the deletion of the Tweet, Babel subsequently posted:

“My apology if they take my posted pic seriously. This is just an emotional reaction after loosing an important game”

Ideally the factors which a crisis management plan could take into account may include:

  • Clarifying statements taken out of context
  • Removing offensive content (quickly)
  • Offering an apology should any offence (or potential offence) have been caused. 

Although Barton could have been said to have apologised when he subsequently Tweeted “Thiago Silva put in the performance of his career. What a day to call him over-rated. In hindsight, I should have waited. #b**tard”. It could be argued it may have been better if he had formulated it in a slightly more eloquent way. However, to do so would not have been in line with Barton’s Twitter style and he may have ended up being accused of insincerity if a more controlled, carefully drafted apology Tweet had been crafted. What this does however demonstrate is that a one size fits all policy is unlike to be successful and each individual must consider their own bespoke strategy. In Joey’s case he could consider deleting the Tweets and issue another apology in conjunction with Marsailles on their official website rather than one on his behalf. The longer it takes to do this though the more damaging the issue can become. 


Authors Comment

Social media offers a previously unparalleled opportunity for engagement with brands, companies and users due to the instantaneous access to significant part of the global population. The law relating to personality rights is complex and ever-evolving. In the UK1, there is no standalone right of personality by which a “celebrity” or well-known figure can protect their likeness but what is clear is that the possibility of generating revenue though its successful exploitation is an increasingly attractive prospect for those with the commercial clout to do so. When engaging with social media, the individual in question has the ability to wield great power from being a respected Twitter user. 

Platforms such as Twitter and Facebook need to be handled carefully as part of high profile individual’s digital strategy. People buy people, and when you are your brand it’s important to make sure that you present it in a way that generates positive public engagement and/or is commercially favourable. This is not to suggest that because there are issues to be alive to that sports stars shouldn’t not engage with the medium, it’s more a case of exercising a bit of caution and thinking before hitting send on 140 characters of text which could undo multi million pound sponsorship opportunities (current, renewal or future) or turn away voters in their thousands (For a discussion of how to Tweet sponsored Tweets within the Law see my FTC (USA)  and ASA (UK) trading standards posts).

Perhaps it is apt to conclude on the following insight: that “education is an admirable thing, but it is well to remember from time to time that nothing that is worth knowing can be taught.” 

Not my words, those of Joey Barton himself in his Twitter profile. Although perhaps with social media you can teach a talented footballer on the pitch, some new lessons for the feed…and others would do well to catch the match highlights unless they want to be “branded” a twit.

1 It may now be possible to protect such rights under Image Rights (Bailiwick of Guernsey) Ordinance 2012 in Guernsey. 

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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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