Imogen Mitchell-Webb (Partner – International Casualty and Head of Sports) and Nicola Greaney KC of 39 Essex Chambers, give their expert insight into the evolving nature of online abuse and the legal duties, controls and protections in place. It’s particularly crucial that NGBs and sports clubs protect athletes and others who are at risk.

Sound legal advice from specialists with the expertise to guide, protect and defend NGBs and clubs is key. These organisations may owe a duty to take reasonable care for the health and safety of athletes and others affected by the sport, such as spectators, and there is an increasing need to be proactive in all aspects of risk management; from prevention of injuries, to discrimination and online abuse.

Read on for the background and implications in more detail and for expert legal advice from our specialists, contact Imogen.Mitchell-Webb@h-f.co.uk.

 

What is online abuse and how is it evolving?

Online abuse is harmful or threatening behaviour on digital platforms, such as social media apps. Abuse covers a wide spectrum of behaviours from trolling and bullying to threatening violence. Common themes are racism, homophobia, misogyny and sexism. Sadly, abuse in sport is not new, and NGBs, clubs and other organisations such as Kick It Out have long fought against abuse of athletes, officials, coaches and fans. Historically the risk of abuse has largely been limited to in-person interactions making it easier to identify and sanction those responsible. The internet means abuse can now occur 24/7 and can be carried out anonymously. A recent report from Ofcom found that online abuse in sport is becoming more common, bolder and normalised, eg one in five players at the 2023 Women’s World Cup faced online abuse (see FIFA and FIFPRO report).

A further, recent development is a link between gambling and online abuse, where abusers try to upset and distract an athlete so a bet they’ve placed is more likely to succeed, or abuse an athlete after a bet has failed. Abuse is also becoming more sophisticated as abusers try to evade moderation. A recent World Athletics review identified increasing use of emojis as an alternative to banned words and a Loughborough University / IOC study identified that emotional abuse, which is not threatening but puts a person down (eg saying they are an embarrassment), is also common.

 

How does online abuse impact victims?

The impact of online abuse is significant. Victims have reported to Ofcom that abuse affected their self-esteem, family relationships and performance and left them with depression, anxiety, paranoia and desensitisation. There were also reports of disordered eating and self-harm being exacerbated.

Abusers sometimes target the families and friends of the intended victim, with the content also being offensive to many who view it. Abusive content therefore creates a damaging ripple effect.

Victims can be overwhelmed by the amount of abuse, particularly if ‘pile-ons’ occur where one abusive message leads to thousands of additional comments or shares, compounding its impact and making it harder to report and block.

Those in fear of abuse will often self-censor, withdraw from social media, or turn down opportunities for fear of online backlash. Some people take mental health breaks or withdraw from their careers entirely.

 

What legal protections are available against online abuse?

There is a patchwork of protections available under civil and criminal law to address online abuse.

Behaviour which meets the criminal standard can be reported to the Police. In some cases, simply being contacted or investigated by the Police may be enough to stop the behaviour. Whether a prosecution – which can lead to a prison sentence or a fine – is pursued is entirely up to the Police and CPS. The investigation can be slow and protracted with each element of an offence needing to be proven to the criminal standard of ‘beyond a reasonable doubt’. Even in cases where communications are extremely distressing and damaging to the victim, free speech considerations and the right to offend, shock or disturb others may lead the CPS to not prosecute.1

Alternatively, victims of online abuse can seek civil remedies such as damages, an injunction to stop the abuse or a declaration that a statement is false. The standard of proof is the ‘balance of probabilities’, which is lower than the criminal standard. However, proceedings can only be brought if paid for by the victim, which means this option is unaffordable for most, or difficult to pursue due to the anonymity of online platforms. As with criminal law, the court will also consider free speech rights of the alleged abusers.

Criminal Offences

  1. The Malicious Communications Act 1988 (MCA 1998) (s. 1) & the Communications Act 2003 (CA 2003) (s. 127): It is an offence to send grossly offensive and indecent online messages / posts, obscene or menacing messages / posts, or to persistently use a public communications network (including social media and messaging apps) for the purpose of causing annoyance, inconvenience or anxiety to another.
  2. The Online Safety Act 2023 (OSA 2023): It is an offence to send false communications (s. 179), communications which convey a threat of death or serious harm with the aim of causing fear (or being reckless towards that outcome) (s. 181) or encouraging or assisting serious self-harm (s. 184).
  3. Offences Against the Person Act 1861 (s.16): Making a threat to kill has long been an offence under this Act.
  4.  Prevention of Harassment Act 1997: It is an offence to engage in a course of conduct (two or more occasions) which the perpetrator knows or ought to know would cause alarm or distress (s.2), or to cause fear of violence (s.4).

Civil Causes of Action

  1. Defamation: A false statement which is published to a third party and causes (or is likely to cause) serious harm to a person’s reputation is defamatory. The typical remedy is damages.
  2. Harassment: A civil claim for harassment may be brought under PHA 1997 (ss. 3 and 3A). Whilst this is probably cheaper than the defamation route, damages claims are usually only justified where there is a serious psychological or physical impact meaning substantial damages would be available. Alternatively if the harassment persists, an injunction could provide an effective remedy.
  3. Assault: An injunction and damages can be sought where a threat of physical violence amounts to assault.
  4. Malicious falsehood: If a victim can prove financial loss as a result of the material online, they can claim damages, an injunction and/or a declaration that the statement was false.

 

Regulatory approach in OSA 2023

The regulatory regime brought in by the OSA 2023 aims to make social media companies and search services operating in the UK more responsible for users’ safety online, and is backed by significant financial sanctions of up to £18m or 10% of worldwide revenue (whichever is higher). The scope of this regulatory regime is beyond the scope of this article but the relevance for NGBs and clubs is that it should now be easier to hold social media companies to account forpreventing and removing abusive content.

 

What responsibilities do NGBs and clubs have?

In English law, NGBs and clubs owe a duty to take reasonable care for the health and safety of athletes and others affected by the sport, including spectators. There are currently no reported cases of athletes or other individuals suing NGBs or clubs for failing to protect them from harm arising from online abuse.

It is difficult to see how such a duty could arise where social media accounts are established and run by individuals on a personal and voluntary basis, and where the NGB or club did not exercise any control over how the individual accesses or engages with social media. However – hypothetically – the situation could differ if athletes or other individuals are contractually required to use social media for marketing purposes, or if a social media account where abusive content is posted is run by the NGB or club.

Regardless of where the law settles on this subject, NGBs and clubs are well aware of the potential physical and mental harm that online abuse can cause, and there is a genuine desire within the sports industry to provide support and protection against that harm.

 

Practical guidance – how can NGBs and clubs to protect athletes and others?

Education

For many people working in professional sports social media is vital for engaging with fans and building their brand and many will have press duties as part of their professional or sponsorship contracts.

It’s therefore key to educate users on safely engaging with social media, understanding how to report online abuse (including the reporting of illegal content to social media companies for removal under the OSA 2023), managing online accounts to limit exposure to abuse, getting help with mental health and wellbeing, and being a positive role model online.

Utilising the power of technology

Users can benefit from tools to block, report, mute and turn off comments / messaging. While not always effective, they help users control the content they see.

NGBs and clubs looking to provide enhanced support can engage third parties that provide monitoring tools to block harmful content and identify and report perpetrators where the activity is criminal. NGBs and clubs could also help lobby social media companies to improve their handling of online abuse.

Standing up for athletes

Where a club or NGB publicly speaks out against abuse, it can be a powerful way to call out unacceptable behaviours. Developing clear anti-online abuse protocols setting out appropriate and inappropriate behaviour gives clarity and the ability to hold abusers to account (eg by banning them from venues).

Where it is possible to criminally prosecute, NGBs and clubs can support victims by providing legal services support. If more than one person is subject to harassment, a club or NGB can apply for a civil injunction on behalf of individual victims; which reduces the burden on those who have suffered.

NGBs and clubs can also report illegal content to social media platforms themselves, as well as or instead of, the user.

Mental health support

NGBs and clubs can provide support by investigating the impacts of online abuse, encouraging a healthy dialogue and ensuring that online abuse and use of social media is included in any health assessments.

The offer of appropriate counselling and mental health services will help those who are struggling get the specialist support they need.