Inn the Field of Play - August 2017: Social Media in a Sporting Context

For many individuals involved in sport, social media is an inevitable and important part of their personal and professional lives.  It provides an additional way of communicating with fans, as well as a means of promoting events, clubs, endorsements and other commercial interests.  Few would argue that sport could or should ever turn its back on social media.  However, the risks associated with it are numerous and should be factored into the way it is used.  In this month's edition, we look at how to minimise the risks social media poses to privacy, reputation and security, as well as the legal steps that can be used when things go wrong.

Social media as a security risk
The trend towards an increasing online presence makes it difficult to keep private information secure.  This is especially relevant for high net worth individuals and those with a significant public profile, including athletes and others involved in sport.  Sports personnel and their advisers should carefully consider their approach to social media, particularly when it comes to posting personal information and views.  It will often be sensible to adopt specific policies around social media use and what not to post.  Instagram, Twitter and Facebook all allow for high privacy settings and these settings should be engaged as appropriate.   Once information falls into the wrong hands, the risks can range from public embarrassment to falling victim to criminal activity, as John Terry discovered the hard way.  

Physical security is one risk but identity theft and cyber breaches are often enabled by individuals disclosing information such as their date of birth, address and place of work on the web.  Other measures may need to be put in place like online monitoring and regular 'mapping' of a person's online presence to ensure private information that has made its way online is deleted, changed or taken into account when putting together a risk assessment and crisis plan.  These measures should be combined with an overarching approach to information security designed to ensure that all devices and online accounts are as secure as possible.

Legal risks exist…
Alongside the security risks, there are of course corresponding legal risks when individuals publish content on social media. Press articles are frequently checked for legal issues prior to publication, but this is not always the case when sports stars post on their social media accounts (although it is often sensible for advisers to retain some level of control).  There have been numerous examples of legal consequences following on from ill-advised use of social media.  Chris Cairns famously won £90,000 in libel damages in 2012 after the then head of the Indian Premier League, Lalit Modi, had posted a tweet suggesting that Cairns was involved in match fixing. Meanwhile non-league footballer Alfie Barker was sacked by Hitchin Town in January 2017 for extremely offensive comments referencing Bournemouth midfielder Harry Arter's stillborn child.  And Andre Gray, the former Burnley and now Watford striker, was suspended by the FA for four matches last season in the context of a series of homophobic tweets that surfaced from 2012 that amounted to an aggravated breach of FA Rule E3(1) relating to improper conduct. 

Before posting anything, social media users would be well advised to imagine that they are standing in front of a live audience encompassing all their followers and ask themselves whether they would feel comfortable saying the proposed post out loud.  John Terry was broadcasting his holiday plans directly to an audience of 3.4 million followers, plus anyone else that chose to look at his entirely public profile. 

…but they are also useful tools
Of course, the legal considerations identified above work both ways and can be used to protect those involved in sport when (as is often the case) they come under attack.  Defamation, breaches of privacy and data protection laws, harassment, copyright infringement and criminal offences can all take place via social media posts and, in the right circumstances, action may be appropriate. 

By way of illustration, the posting of images or references to intimate sexual encounters (often referred to as "revenge porn") has been a hot topic over the past 12 months and will in most cases be unlawful.  It is no secret that various high profile individuals have been the victims of these cases.  Not only is the publication of such information likely to amount to a breach of privacy and the data protection rights of the individual, but it will also often amount to a criminal offence pursuant to section 33 of the Criminal Justice and Courts Act. 
In more general terms, the posting without consent of false, private or personal information on social media can give rise to causes of action under defamation, privacy and data protection laws, while repetitive posts that cause distress or are abusive may amount to civil and/or criminal harassment under the Protection from Harassment Act 1997 and other criminal offences that relate to malicious communications.  In these situations, action may be appropriate against the individual responsible (although it should be weighed up against the risk of giving a story more oxygen or exacerbating the situation), while removal requests can also be directed to the social media platform.  Ultimately it comes down to how damaging the content is proving for the individual but the tools are there should they wish to take action.  Of course, much of the content referred to above is also likely to be in breach of Facebook or Twitter's terms and conditions, which in general makes the removal process more straightforward.

Conclusions
While those involved in sport should be encouraged to use social media in the right way, the harsh lessons that have been learnt in the past underline the need to appreciate the risks involved.  In many respects, it is a case of common sense.  Sadly, this appears to be something that deserts many a user when they have their phone in hand.  For most of us, the consequences less likely to be severe, but as the examples above show, for those involved in the high profile world of sport they can lead to security issues, fines and suspensions. Conversely, when the boot is on the other foot, the tools are there to provide the protection that sports stars need.  What high profile individuals and their advisers should do is plan and protect in advance of issues arising.  It is not a case of these events happening only to others.

If you require further information on anything covered in this briefing please contact Tom Rudkin, Alicia Mendonca or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Sports Organisations page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2017