In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Tuesday, October 4, 2011

RWC Part VIII - Sapolu, Twitter, Defamation and Liability

After his last outbreak of sweet reason, Eliota Fuimaono Sapolu of Samoa was charged with breaching the IRB Code of Conduct by bringing the game into disrepute. Samoa were also charged with this, due to their failure to control him.

The disciplinary hearing was scheduled for today; except Mr. Sapolu decided he didn't feel like turning up (he was off doing an interview on an NZ radio show instead). The hearing was adjourned, until he does deign to turn up; and, as with any player who is cited, he remains suspended until his hearing is completed.

The Samoan RU accepted the charge against them of failing to control their player. It could not make the point clearer; teams need a policy on the use of social media, and need to enforce it. Or else they will suffer.

This is becoming a wider issue in the law. There are more and more defamation cases arising out of the use of social media, some of which involve sport; there are excellent articles HERE and HERE from the Guardian on the topic, including Chris Cairns the NZ cricketer suing the head of the IPL over an allegedly defamatory tweet, both of which articles I'd thoroughly recommend.

What is interesting is the question of vicarious liability; the legal concept that an employer will sometimes be liable for the actions of their employee. It can hardly be doubted that accusations of the kind made against a referee are defamatory; the only question is, if such an action were taken, would his employers be liable as well?

Given that, for many teams, interacting with fans through social media is now part of the players' duties, does their rugby-related Twitter activity fall within the boundaries of their employment? And, if so, does it mean their employer is liable for their actions? That their actions may be in breach of the laws of the game may well be irrelevant; in Gravil v. Carrol and Redruth RFC a player's foul play in punching an opponent was found to so closely conneted to what is involved in being a professional rugby player that the club was liable for it (not the least reason why this case is loved by everyone who's read it). 

The question would be, whether or not the Twitter activities of a player would be so closely connected to his employment as a rugby player in this day and age that his employer would be liable for him. Given that the Samoan RU accepts that it was responsible for his activities, it might be even easier in this particular case.

It would be interesting; and, as others have remarked, the last thing anyone wants to hear is lawyers saying something would be "interesting".

The lesson is, again; have a policy on social media, and enforce it, or pay the consequences.

Meanwhile, Sapolu's club employers, Gloucester, must be fit to be tied over this.

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