The Sports Law & Policy Centre | @Sport and social media #legal aspects
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@Sport and social media #legal aspects

By Nandan Kamath

Background

Given the vast numbers of people who use online social networking in recent times, it is axiomatic that legal issues surrounding sport and social networking websites may arise. According to recently released figures, Twitter boasts a total of 175 million users on its online accounts, while 600 million users access their Facebook account at least once each month (half of which use their account on a daily basis). These numbers highlight the sheer scope and potential of the online social networking websites. These social networks have also simplified the process of “publishing” content that is accessible, in most instances, globally. Legal disputes are bound to follow when single-click publishing (often without thought of legal implications) increasingly becomes the norm.

The legal landscape with respect to online social networking sites is relatively simple when one takes the time to understand the rules and regulations attached to websites of this nature. No one can justifiably deny that social networking websites have changed the way in which individuals from different corners of the world interact with each other. Indeed, there are many benefits for day-to-day users, athletes and organisations alike. The advantages of such sites range from public relations opportunities with a broad reach, to enhancing one’s professional network, to keeping up to speed with what’s happening in the world. However, if online social networking is not used with caution, users can be in breach of the website’s terms of use, national or international laws or a legal cause of action may arise if a user’s online activity impinges on the personal rights of another individual.

This article will outline the current rules and legal framework that are in place, in light of recent cases. More specifically, this article will consider the legal issues that sports athletes on the one hand, and every day users of such sites on the other hand, should consider before engaging in social networking websites. The issues raised by Twitter include unauthorised release of confidential information (including selections, team composition, etc.), publication of critical comments in breach of player agreements, player impersonation, the right to privacy, defamation and other emerging matters of similar import.

Terms and conditions

To illustrate how social networking website leave individual users open to face the full brunt of the law, this article will use Twitter as a case study. More specifically, Twitter ensures that all users enter into a legally binding contract with them before activating their account – that is, every user must agree to Twitter’s terms of use. The Twitter Terms state that “[Users] are responsible for [their] use of the Services, for any content [they] post to the Services, and for any consequences thereof.” Moreover, “[Users] may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.” Accordingly, Twitter will not be responsible or liable for any use of a user’s content on Twitter. The Terms require for a user to represent and warrant that they have all the rights, power and authority necessary to upload any content that they submit. Indeed, Twitter has the right to disclose a user’s personal information if such a breach occurs. For example, recently a famous English footballer has filed a case in the High Court in London seeking to obtain the personal details of individuals who had breached an order of a British Court by breaching an anonymity injunction on Twitter. If the footballer (named by the court as CTB) is successful in this claim, Twitter may, pursuant to its Terms of Use, pass on the personal details of such users as they will have been deemed to have breached a court order (as discussed below). Out of respect to the UK imposed injunction, this article will refer to this footballer as CTB

According to the Twitter Terms, all users agree to “comply with all local laws regarding online conduct and acceptable content.” This section of the Terms of Use would have indeed been applicable in the recent High Court case filed against Twitter by a famous English Footballer.

The Right to Privacy

CTB v. Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814)

This case was filed by a famous footballer as he alleged that a large number of Twitter users had breached an injunction order by a United Kingdom court. This injunction had the effect of preventing the publication of CTB’s alleged affair with UK Big Brother contestant Imogen Thomas. The result of this case was that CTB successfully claimed an anonymised injunction, meaning that no- one with notice of this case could publish his name or image in connection with the alleged affair, or in connection with the case itself. This anonymised injunction was imposed not just on the tabloid newspapers. Even individuals could breach this court order. However, it should be noted that this court order could only be imposed on individuals within the jurisdiction of the UK courts. The effectiveness, therefore, of this type of order is questionable as newspapers as well as users of social networking sites could publicise this case without breaching the court order. Given the speed and scope with which the internet can disseminate information, anyone with a computer and access to the internet in the United Kingdom could access the ‘full story’ with the click of a button.

The crux of the CTB v. Twitter case, however, lies in the fact that many Twitter users in the United Kingdom breached a court order simply by tweeting the footballer’s name in connection with the alleged affair. It should also be noted that an individual can still be held liable for breach of a court order by retweeting another user’s content. That is, one can still be still liable if they publish or republish unauthorised content even if they are not the first person to do so. Any user of Twitter will know the ease with each one can re-post a ‘tweet’ on their own Twitter account – simply by clicking a button – but if a user retweets a message that breaks a court ban or even repeats a defamatory comment (see below) they may be equally culpable and liable for breach of that order.

If CTB’s claim is successful, and if jurisdictional issues are overcome, Twitter may be compelled to provide CTB with the contact details of all users who breached the court order. Irrespective of the success of this claim, however, the cyber world is now well aware that there may be consequences for any content that is tweeted or re-tweeted. When uploading content, users of online social media are essentially publishing material in a world-wide public forum. It follows that if unauthorised or illegal content is published, this will have wide-reaching consequences. Specific case law is bound to emerge sooner rather than later on this point.

Defamation/Libel

While court ordered injunctions against publicising someone’s identity are apparently rare, users of online social networking may need to defend themselves in court if they publish defamatory content online. That is, if an individual publishes untrue content about another individual that harms the latter’s reputation they may be liable to a claim of defamation. Traditionally, print media and television broadcasters have been the target of defamation suits, however, in modern times, individuals who publish content online may also be liable to such a claim. Twitter and other online social networking websites are one such medium where users may find themselves on the wrong end of a defamation claim. Indeed, celebrities and budding athletes could find themselves in a scenario where individuals have published false content that may be harmful to their image – if such a scenario arises, legal action may be a possible option. Conversely, sportspeople and other celebrities must proceed with caution when it comes to publishing material about other individuals. While defamation with respect to social networking is a relatively unchartered area of the law, there have been a number of recent cases in this area that may help illustrate this point.

Celebrities who pride themselves as being well connected in the Twittersphere have been caught out on a number of occasions by tweeting inappropriate comments. For instance, a famous American singer, Courtney Love, recently settled a defamation case out of court for US$430,000. In any event, it is likely that a defamation claim against her would have been successful given that she tweeted a number of baseless allegations about a famous fashion designer.

While a number of cases have received recent publicity in the entertainment industry, there have been fewer publicised claims made against athletes. In 2010, however, a defamation claim was made in the England and Wales High Court (Queen’s Bench Division) by Chris Lance Cairns, a former New Zealand cricket all-rounder. In this case, Mr Cairns alleged that the then Chairman and Commissioner of the Indian Premier League (IPL) and Vice-President of the Board of Cricketing Control for India (BCCI), Mr. Lalit Modi, had made defamatory remarks about him which harmed his reputation. These comments were made on Twitter. Mr.Modi allegedly made comments in a tweet to the effect that the Mr. Cairns had been sacked from an Indian Cricket League team because of match-fixing, contrary to Mr. Cairns’claim that this was due to knee problems. This tweet was later removed from Twitter but in the meantime it had been republished by a famous online cricketing blog and was also considered by the IPL as sufficient grounds to exclude Mr. Cairns from the IPL player auction in 2010. Before the court, Mr. Modi denied that any substantial tort occurred within the UK jurisdiction and accordingly brought proceedings to have the claim set aside, claiming that the claim was ‘trivial’ in nature and purely speculative. Despite this ‘defence’, the High Court determined that Mr. Cairns could continue the defamation action to trial as he had a right to protect and vindicate his reputation. The substantive suit, once decided, is likely to set a number of important precedents.

Breach of Player Contracts and Codes of Conduct

Opinion is divided as to the benefits of social media websites from the perspective of sporting clubs and sporting organisations, with some having banned their athletes from uploading personal and professional content on social networking sites. For instance Cricket Australia encourages its athletes to engage with social networking sites as it acknowledges the public value in the process. However, CA acknowledges that it “encourage[s] players to engage with the public and use those channels but within the process and not before selectors have officially published the team.” However, a number of athletes, including cricketers have been caught out for publishing inappropriate content online, including for example, official decisions that have not yet been made public. To this end, some sporting organisations have banned, or limited their sporting members’ use of websites such as Twitter. A good example of this is the fact that the ICC banned the use of Twitter during the ICC Cricket World Cup 2011 in order to reduce the likelihood of corruption and the use of inside information. Accordingly, players were not entitled to tweet during the course of the tournament. The England and Wales Cricket Board (ECB) has also been relatively stringent with their social media policy in recent times, imposing temporary bans on players and also fining some players in extreme cases. For example, former England Under-19 captain Azeem Rafiq, was sanctioned a £500 fine and a one-month ban from all cricket by the ECB for uploading inappropriate content on Twitter. The ECB apparently took offence to Rafiq’s response from being dropped for a match against Sri Lanka when he tweeted that coach John Abrahams was a ‘useless ******’.

It is clear that sporting clubs and teams are taking stands on the appropriateness of social networking behaviour of players in order to protect the players from personal liability but also the clubs and teams themselves from damaged reputation. Rather than adopting a blanket ban of social networking websites for athletes, it may perhaps be necessary to better educate sportspeople of the possible consequences of failing to use social networking websites responsibly.

Impersonation

Another oft-occurring situation is that of impersonation of sports celebrities through the establishment of fake accounts on social networking sites. Most websites, including Twitter, have a reporting procedure for cases of impersonation and take action once they are put on notice of an account that attempts to mislead others as to the identity of the user.

While a sports celebrity or anyone else will not be liable or responsible for the comments published by an impersonator, it is important that the celebrity exercises vigilance to ensure that fake accounts in his/her name do not operate, there being no affirmative obligation on the part of Twitter or similar websites to determine whether the user is indeed who he/she claims to be. To partially bridge this gap, Twitter has a “Verified Account” procedure where, upon the production of identity information, Twitter certifies that the user is who he/she claims to be. That said, not all sports celebrities have their accounts “Verified” and there is little guidance for users on whether an unverified account is fake or real. This leaves celebrities to fire-fight in instances where comments are attributed to them and they have to often cover up tracks created by others.

Beyond shutting down fake Twitter accounts, the victim of impersonation is likely to have an “identity theft” claim under civil law and criminal remedies might also lie in various legal jurisdictions against the impersonator.

Copyright Law and Trade Secrets

The basic as well as additional features that Twitter offers, such as the uploading of images, also raise copyright, trade secret and related legal concerns. The unlicensed and unauthorised uploading, publication, republication or linking to copyrighted and proprietary content may impinge on the rights of others. This could include confidential and strategic information (such as a team list, a match strategy document or unreleased equipment designs), copyrighted materials (this could include images of an athlete posted by an athlete – keeping in mind that the copyright in the image is owned by the photographer or his/her employer and not the athlete) or other similar original materials. The ease of capturing and posting or re-posting these presents a number of legal traps for the unwary and an element of self-education and caution would be advisable when dealing with what is obviously someone else’s proprietary content.

Legal framework in India

While a number of cases have arisen internationally, Indian courts have not had too many opportunities to consider the law surrounding Twitter content.

In India, defamation, copyright and trade secret violations as well as impersonation and fraud are governed by both criminal and civil law. This means that if an individual publishes infringing content he/she may be liable to pay damages, but also may be cognisable and punishable under criminal law in certain cases.

The issue of a ‘right to privacy’ has been interpreted differently in India as compared to the U.K. and U.S. Under the Constitution of India the explicit right to privacy of an individual is not recognised. However, the Supreme Court of India has construed “right to privacy” as a part of the Fundamental Right to “protection of life and personal liberty” – under Article 21 of the Constitution. Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedures established by law”. Notwithstanding this, the Supreme Court of India has been careful to interpret Article 21 in the context of privacy very narrowly. The Court has consistently interpreted ‘the right to privacy’ narrowly as the Fundamental Right enshrined under Article 19 – “the right to freedom of speech and expression” – has to be taken into account. Accordingly, a balance needs to be struck in determining whether a communication or publication about an individual’s private life is in fact a breach of a right to privacy or simply an exercise of their freedom of expression.

The Supreme Court has, however, considered whether personal information can be published about an individual without their prior consent. In R. Rajagopal v. State of Tamil Nadu [AIR 1995 SC 264], the Supreme Court held that

“… None can publish anything concerning [an individual’s private life] without his consent- whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages…”

This rule is, however, subject to the right to freedom of speech and expression and also must be considered in light of all of the circumstances of the case.

It is important to note that while the Supreme Court has interpreted some constitutional rights broadly such that they may be enforced against non-state actors, the implied right to privacy protection has arguably not been interpreted in this way. Although Mr. X v. Hospital Z, AIR 1999 SC 495, has raised the spectre of a right to privacy between private individuals, a narrow reading that this precedent commands would suggest that causes of action may lie only against the government and “State” actors for an infringement of an individual’s right to privacy. This narrow interpretation by the Indian courts is a departure from British jurisprudence. This area of law is yet to be tested in the Indian context from the perspective of online social networking. The right to privacy in India remains limited and it appears that the Supreme Court, in an attempt to strike a balance between the right to freedom of expression, is reluctant to develop this jurisprudence in a hurry. The legal landscape surrounding the right to privacy in India may, however, change dramatically if the Right to Privacy Bill 2011 is enacted. In light of this, users of social networking sites such as Twitter should proceed with caution before publishing content about the private life of another person.

Conclusion

Twitter and other social networking sites are a double-edged sword for both athletes and members of the public. Athletes should, in particular, be aware of the legal and contractual implications before uploading or posting content. Tweets can be viewed instantaneously from all over the world, and accordingly any content that is uploaded can have far reaching implications for the athlete personally, and for the teams, organisations and people that they represent.

As the technology of social networking continues to evolve, the legal framework in this area will also continue to develop. In the meantime, users of online social networking while enjoying the many benefits that such sites have to offer, should be aware of the possible legal and contractual consequences of their use of these technologies.

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