Does more online protection need to be given to football players  and is the Draft Online Safety Bill the answer?

Daniel Jackson of BCL Solicitors LLP, who advises and acts for many high profile footballers and professional athletes in matters of crisis and reputational management, discusses the UK’s Draft Online Safety Bill and how it can help English football put a stop to online abuse targeted at players.

During the Coronavirus pandemic, there has been an alarming rise in cases of vile online abuse, which appears to be routinely directed at footballers.

The increase in offending of this nature and the seeming inaction of the media companies concerned, led to the four-day boycott of social media between 30 April and 4 May, by football clubs, players, other sports professionals and a number of sporting bodies, in an attempt to universally confront online abuse. For some, this boycott felt like it was over way too quickly.  

A week later, the Draft Online Safety Bill (‘the Bill’) was published on 12 May 2021, having been mentioned in the Queen’s Speech the previous day.

And still, Marcus Rashford MBE suffered online racial abuse following Manchester United’s Europa League final loss, with the England star being subjected to a bombardment of abusive messages.

In advance of the European Championships, BT launched ‘Hope United’, a team of footballers with the aim of tackling online hate ahead of the Euros, by uniting the nation against online abuse, raising awareness, encouraging support for change and delivering education for social media users.

We witnessed fans unifying to quickly stop the European Super League and it now feels like there is a similar movement to come together to stop the racism and hate online that football players are experiencing, all too often.

The England players are taking a knee during the Euros, a decision which some ‘fans’ had previously decided to boo. Kick It Out and the Football Supporters’ Association are asking England fans to stop the boos, get behind the team and applaud players taking the knee.

With the Euros now underway, social media platforms are likely to continue to be a hub of activity, so it is imperative that we continue to take steps to eradicate illegal and harmful content online.

The Bill is extensive, complex and has been widely reported, however, this article will focus on how it might regulate the online abuse of footballers.

The Draft Online Safety Bill

Putting it simply, the aim of the Bill is to prevent harm to individuals. The Government states that the Bill ‘delivers the government’s manifesto commitment to make the UK the safest place in the world to be online’, whilst also ‘defending free expression’.

Online service providers are defined as those providing regulated user-to-user services or search services. Those providers enabling user-generated content or permitting individuals to communicate online are required, because of a new ‘duty of care’, to remove and limit the sharing of illegal and harmful content. Social media sites will need to act on content that is lawful but still harmful, namely abuse that does not constitute a criminal offence.

The Bill gives powers to the Office of Communications (Ofcom) to supervise and enforce the new regulatory regime. It makes provision for the creation of new statutory codes of practice, which would be drafted by Ofcom, though they would still be subject to the approval of government ministers and the parliament of the UK.

Ofcom will have the power to impose financial penalties of up to £18 million for companies not fulfilling the duty of care or 10% of annual global turnover, whichever is higher, and possess the ability to prevent access to particular user-to-user services or search engines from the United Kingdom.

The Bill comprises reserved powers for Ofcom to pursue criminal action against senior managers, where their companies do not conform with the regulator’s information requests.

The Bill creates duties for users as well as providers, including safeguarding privacy and the freedom of expression of users, amidst concern that providers are haphazardly removing content and blocking users.

What impact is expected?

English football is calling for the Bill to be enacted in legislation ‘as soon as possible’, and everyone connected to the beautiful game wants robust action and accountability to the online world.

The widespread opinion and hope for the Bill is that social media companies must firstly prevent, then detect and ultimately remove abusive content from their platforms. However, there remains a subjective element to this process, with a risk that legal but harmful content is not routinely identified and captured at the necessary level.

Meanwhile, providers highlight that they have developed systems and processes that result in improved monitoring, detection and removal of offensive messages, and those responsible for the content. Further, users have also been granted increasing levels of control over who can actively engage in private messaging with them.

The Bill will need to be carefully scrutinised before being legislated, in order to examine whether the new regulatory approach will be workable in practice. Some critics of the Bill have raised that it could prove to be an authorisation for online censorship.

Information is key and social media companies are getting more effective at providing the information needed to identify those responsible for the abuse. However, such recognition can and should always be achieved more promptly – ‘speedy justice’.

Sadly, there is a perception that footballers are benefitting with a ‘premium service’ from the social media companies and the police. There is no disputing that footballers are leading targets for abuse and that daily abuse is also aimed at people who are not in the reach of the media.

In my experience of acting for professional and private clients facing high-profile and complex criminal matters, the nation wants to see action and justice, which portrays a powerful and encouraging message to providers. The Bill should strengthen the resolve, acting as a deterrent for those who people might engage or find themselves caught up in such behaviour.

The football world will be hoping that the Bill, if enacted, results in a clamping down of online abuse at the absolute earliest opportunity.

Daniel Jackson is a solicitor at BCL Solicitors LLP specialising in serious and general crime litigation. He has considerable experience of acting for sports professionals being investigated and prosecuted for acts of a sexual nature, dishonesty, violence, drugs and road traffic offences. To speak to Daniel or any member of the BCL team in the strictest confidence please call 020 7430 2277 or email law@bcl.com