Social Media ‘faux pas’: there’s only one ‘tweeting’ winner – Peter Coe

6 11 2014

Twitter LibelSocial media is a double-edged sword. On the one side it enables individuals to circumvent the traditional mass media, converging audience and producer to create millions of ‘publishers’.

This new and ubiquitous producer uses social media platforms as a way of, not only receiving news, but of instantaneously, and often spontaneously, without filter, expressing opinions and venting and sharing emotions, thoughts and feelings. Thus, they are able to express themselves without constraint; they are free of editorial control, owner or political bias or the pressures of generating commercial revenue.

On the other side of the sword, this ‘power’, if used irresponsibly, can lead to ‘catastrophic’ consequences for the individual. For example, individuals in the UK, and elsewhere, have been convicted of criminal offences (for example, DPP v Woods Unrep. October 2012 (MC)), investigated by the Federal Bureau of Investigation, sued for defamation (For example, see Applause Store Productions Ltd v Raphael [2008] EWHC 1781; Cairns v Modi [2012] EWHC 756 (QB); [2012] EWCA Civ 1382; Tilbrook v Parr [2012] EWHC 1946 (QB). See also the recent Australian case of Mickle v Farley [2013] NSWDC 295 (Farley, a student, was ordered to pay Mickle, his teacher, A$105,000 in damages for tweets sent to his followers), and have been subject to disciplinary proceedings, and in some cases, dismissal by their employer.

Thus, a consequence of the ubiquity and diversity of these platforms, and the way in which they have ingrained themselves within our social cultural fabric, is that habits, conventions and social norms, that were once informal and transitory manifestations of social life, are now infused within social media platforms. What were casual and ephemeral actions and/or acts of expression, such as conversing with friends or colleagues or swapping/displaying pictures, or exchanging thoughts that were once kept private or maybe shared with a select few, have now become formalised and, potentially, permanent, on view for the world to see.

These problems with social media, in a criminal context at least, led to the DPP issuing Interim Guidelines last year and, in October 2014, Chris Grayling, the Justice Minister, announcing that the Criminal Justice and Courts Bill (which is due to enter its third Reading on 10 of November) would amend the offence of ‘sending a letter, electronic communication or article of any description’ which conveys a threat or abuse, pursuant to section 1 of the Malicious Communications Act, to a triable either way offence, thus imposing a maximum sentence of two years imprisonment. In addition, the same Bill proposes to make Revenge Porn a specific offence, also carrying a maximum two-year custodial sentence.

Consequently, there is no doubt that the irresponsible use of social media has, and will continue to produce ‘losers’, who’s conduct gives rise to catastrophic consequences for their personal and work lives. To the contrary, perhaps the greatest ‘winner’ from numerous social media faux pas is the Football Association.

According to a recent article by David Hytner in the Guardian, the FA has made £350,000 in twitter fines since 2011. This does not just include the well-publicised incidents involving Premier League superstars. For instance, the FA has investigated cases at all levels of the game, from ‘grass roots’ football, to the top tier. According to Hytner, the lowest fine imposed was £50, to the St Neots Town official, Mike Green, for remarks that he posted about a referee.

The FA began to fine players in the 2010-11 season, after the former Liverpool player, Ryan Babel, posted a photograph of the referee Howard Webb mocked up in a Manchester United shirt. Since then, the FA has investigated 121 instances of inappropriate comments on social media.

Hytner’s report states that, of those 121 cases, 18 have resulted in no further action being taken; 27 resulted in warnings; 16 resulted in the participant being reminded of their responsibilities and 60 led to charges. Of the charges, 33 have involved aggravated breaches of, in particular, FA Rule E3(1), which states:

A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.

Despite the FA introducing an educational programme to prevent re-offending, it seems that it will continue to generate revenue through fines relating to breaches of Rule E3(1).

For example, Rio Ferdinand was recently fined £25,000, and suspended for three matches, for a tweet that represented an aggravated breach of its rules, pursuant to Rule E3(2), as it included a reference to gender (A breach of Rule E3(1) is an “Aggravated Breach” where it includes a reference, whether express or implied, to any one or more of the following :- ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability). Ferdinand referred to the mother of a twitter user with the Caribbean slang term “sket”, which means promiscuous girl or woman. Ferdinand was previously fined £45,000 in 2012 for appearing to endorse a tweet referring to former Chelsea defender Ashley Cole on twitter as a ‘choc ice’, after Cole had to give evidence in support of his then team-mate, John Terry, who had been accused of racially abusing Ferdinand’s younger brother, Anton.

According to Hytner, only two players have been fined more at any one time for their social media faux pas. The FA handed down a £90,000 fine in 2012 to Ashley Cole as a result of him calling the FA a “bunch of twats,” after they had questioned the evidence he gave on behalf of Terry. Earlier this year, Tottenham Hotspur defender Benoit Assou-Ekotto was fined £50,000, and suspended for three matches, for his message in support of Nicolas Anelka’s “quenelle” gesture.

Thus, it seems, so long as football players and officials continue to express themselves via social media, in particular twitter, the FA’s use of Rule E3(1) will not abate, and it will continue to have a ‘cash cow’ that generates significant revenue that it can re-invest into the game. Footballers and officials at all levels: You have been warned!

Peter Coe is a Lecturer in Law at Aston University and a barrister (Door Tenant) at East Anglian Chambers.


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