The rights of the message-board moaner
A judge has ruled that Sheffield Wednesday fans making scurrilous remarks online have no right to anonymity. That's bad news for free speech.
What do football fans do on internet message boards? There’s a fair bit of idle chit-chat, transfer gossip, and post-match analysis. But, more than anything, there’s a shedload of moaning and abuse. Football fans like to have a go. At the manager, at the players, at the chairman, at the directors, at rival fans and, quite often, at each other.
When fans aren’t using message boards to have a pop at someone, they’re hurling abuse from the stands. As a rule, it’s advisable not to take any of this stuff too seriously, especially when you’re running a failing football club. And, to their credit, traditionally football folk – fans, players, managers, directors – have taken it on the chin. We’re grown-ups. We can take a bit of name-calling.
But the times are a-changing. As I’ve documented on spiked, there’s a growing trend for terrace banter to fall foul of the new ‘family-friendly’ stadium etiquette. Similarly, fans are more inclined to run crying to the coppers to complain about players’ provocative goal celebrations. And now the suits in the directors’ box are signing up for the Easily Offended Tendency. Last month, a court ordered the owner of the Owlstalk message board to reveal the identities of four Sheffield Wednesday fans who had been posting defamatory comments about the club’s top brass.
Wednesday chairman Dave Allen, chief executive Kaven Walker and five other directors had taken Owlstalk owner Neil Hargreaves to court to obtain the identities of 11 anonymous posters who, as they saw it, had been conducting a ‘sustained campaign of vilification’ against them. The judge, Richard Parkes QC, refused to grant disclosure orders in the majority of cases saying that most of these messages ‘border on the trivial’ and were ‘no more than saloon bar moanings’. One of the discussion threads, for example, contained the unfounded suggestion that the Owls’ chief executive ‘blew…money on hookers’ and didn’t know the difference between a rugby hooker and a football striker. In his judgement, Parkes commented: ‘I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive, or likely to be understood as jokes.’ (1)
However, the judge did order Hargreaves to disclose the identities of four fans, who had posted under the pseudonyms ‘ian’, ‘halfpint’, ‘vaughan’ and ‘DJ Mortimer’ because their postings had been more serious and contained allegations of ‘greed, selfishness, untrustworthiness and dishonest behaviour’. For instance, one such defamatory posting alleged that the chief executive was incapable of spotting a competent player.
So how, in football parlance, do we sum up the result? A red card for the laptop boo boys who hide behind the cowardly cloak of internet anonymity? A defeat for freedom of expression? Or, perhaps, a judgement of two halves? It is true that the judge didn’t go as far as the club had demanded. IT law specialist Stefan Paciorek drew some positives from the ruling. ‘In effect he seemed to be saying “grow up” about a large number of these comments’, said Paciorek (2). But this amounts to little more than a consolation goal in my opinion. Ultimately, the judge had to accept that freedom of speech is trumped by the need to protect against defamation. In his ruling he said: ‘In the case of those postings, the claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgement, the right of the authors to maintain their anonymity and their right to express themselves freely.’
In other words, despite enjoying a lot of possession, free expression ends up on the losing side. But why would we expect any other outcome? At the risk of sounding like a paranoid Italian football manager who thinks the authorities are conspiring against his smalltown club, there isn’t really a level playing field with Britain’s libel laws. As Helene Guldberg has argued before on spiked, the burden of proof is stacked heavily against the defendant (3).
Stefan Paciorek thinks that the ruling has helped to clarify the law. ‘It’s possibly the first case of online defamation we’ve had in this country where the right to privacy has outweighed the right to protect a reputation simply because defamatory comments were trivial’, he said. Clearer guidance on how to apply the law might be helpful for lawyers but, in my opinion, bad laws should be scrapped not clarified. Moreover, I can’t get that excited about the right to post trivial insults on a message board. Where does the boundary lie between trivial and serious? The judgement seems to suggest that it’s okay to say that a club chief executive pays for whores but wrong to question his character or competence. It’s a fairly subjective distinction which may lead twitchy forum moderators to err on the side of caution and pull any abusive content just in case.
The judgement doesn’t outlaw ‘saloon bar moaning’ but it may well make fans and moderators more cautious about message-board griping. This would represent a further erosion of the traditionally robust, thick-skinned culture of terrace banter. Abuse and needle is all part of the game – or at least it ought to be. Of course it is hurtful, but club directors have always had to put up with ‘sack the board’ chants when things aren’t going right. If players and managers have to deal with jeers and abuse, directors should be thick-skinned enough to ignore the boo-boys and message board moaners.
In any case, I fail to see how taking your own supporters to court does your reputation any good. The Sheffield Wednesday board could have silenced the moaners by helping to revive the club’s fortunes. If you’re on the board of a football club then managing the club’s affairs well rather than using the libel laws to gag fans strikes me as a far better way of protecting your good name.
Duleep Allirajah is spiked’s sports columnist.
Read on: spiked issue sport
(1) Sheffield Wednesday Football Club Ltd & Ors v Hargreaves  EWHC 2375 (QB) (18 October 2007)
(2) Red card for commenters, Guardian, 29 October 2007
(3) Don’t tinker with the libel laws, scrap them, by Helene Guldberg
To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.