The Risks of Social Media in Sport
Since the advent of social media, the list of those who have fallen from grace through ill-advised and, at times, offensive public comment is long and distinguished. Nowhere is this risk more obvious than in the sporting context, where a combination of youth, self-belief and hubris provides a heady mix.
Sport at all levels encourages and benefits from the widespread use of social media. Amateur clubs organise their training and matches using whatsapp, Facebook groups and emails and these social media connections are essential to the passing on of necessary information. However, they are open to abuse: for example, whatsapp groups can be used to post unrequested and unwelcome material to other group members, often with the intention that such posts are viewed as jokes or ‘banter’, the mobile phone numbers of group members, often with accompanying photographs, are available to others within the group, personal details can leave participants targeted for acts of harassment and clubs may be fined for GDPR breaches. Social media can therefore present as a legal risk to both individuals and the sporting organisations they are associated with.
Individuals can also run into difficulties with their employer by posting material not directly relevant to their work. This was illustrated in Game v Laws[1] where Mr Laws used his personal twitter account to follow his employer’s accounts, posting tweets which his employer described as, “intimidating, racist and anti-disability”. The EAT overturned the ET, which had ruled in Mr Laws’ favour, finding that as his tweets were not private and had found their way onto his employer’s twitter accounts they should have been taken into consideration by the ET as there was a clear connection between his twitter account and his work.
In a different context, in Page v Lord Chancellor[2], the applicant who was a magistrate, unsuccessfully sought to reject an adoption by a same-sex couple on the basis of his Christian beliefs. He was not only dismissed from his position as a magistrate but also as a non-executive director at his local NHS Trust, the latter having no connection with his role and decisions as a magistrate. Both dismissal decisions were upheld by the ET and the EAT; a Court of Appeal decision is expected shortly.
Most, if not all sporting clubs, at whatever level, will have rules prohibiting players, coaches and members from bringing the club or the game into disrepute and those within professional sports may have signed contracts with behaviour and social media terms within them. Those rules and contractual terms may in some cases be interpreted to cover opinions and posts expressed outside the context of the participants’ involvement with the club or sport. Breach of these rules may lead to various sanctions including disciplinary action, dismissal or expulsion.
Further, at all levels one-on-one contact between coaches, who are in a position of control, and young sportsmen or sportswomen, via social media and text messages poses a particular risk to both sides.
These concerns exist at the elite level also, with the additional problems presented by widely viewed social media posts, often seen as a necessary way in which those involved in sports communicate with their fanbase and ‘build a brand’. Poorly chosen words, ill-informed opinions or late-night errors of judgement can lead to serious consequences for the poster in what is an increasingly judgemental online world.
It is not merely the individual who is at risk, the organisations or clubs themselves may be viewed as vicariously liable for that individual’s actions on and off the field of play[3]. Further, as custodians of personal information, sporting clubs and organisations may also be liable for any GDPR breach. Clubs and their insurers are understandably seen by claimant lawyers as a more obvious source of recoverable damages, see for example DSN v Blackpool Football Club[4] and cases where serious psychiatric injuries can be established, such as in sexual abuse, bullying and harassment cases, particularly with young claimants, may produce significant awards of damages and costs against organisations.
In addition to the risk of civil proceedings and damages, social media posts are subject to the criminal law including the Protection from Harassment Act 1997, Malicious Communications Act of 1988, Criminal Justice and Police Act of 2001 and the Communications Act of 2003. Posts or messages which are considered to be indecent, threatening or grossly offensive may be found to be illegal and any course of conduct amounting to harassment, whether the recipient of the messages is in fact harassed or not, can lead to prison sentences.
To mitigate the risks posed by social media, sports clubs and other sporting organisations should have in place policies which sensibly address the concerns without seeking to improperly limit their members’ etc. right to express themselves freely and without compromising the club’s ability to effectively communicate with its members and more widely. Guidance can be found from governing bodies and examples of such policies can be found by simple internet search. There appear to be a multitude of different approaches taken to address the same concern and however the policy is drafted, care should be taken to reflect the law, not to be too proscriptive and to draw the line between regulating communications directly associated with the club or organisation and that which is personal.
For individuals involved in sport in many ways the solution is easier, pause before posting.
[1] UKEAT/0188/14/DA
[2] UKEAT/0304/18/LA
[3] Gravil v Carroll & Redruth Rugby Football Club [2008] EWCA Civ 689
[4] [2020] EWHC 595 (QB) – see also Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 and Cox v Ministry of Justice [2016] UKSC 10
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