Insights into litigation, sports law, media and legal culture

Australian racing’s social media rules do not work (plus 5 tips to help)

A Chairman of a large corporate organization once told me he joined social media platforms because of his daughter. Her first job was at an advertising agency. She came home shocked one night. Her co-worker had just lost her job because she was critical of a client on her personal Facebook page. The employer found out. The work colleague was carrying her box of possessions from the building within hours.

For the daughter, social media had just changed from being a ubiquitous Gen-Y communications tool, to something with real consequences. For the father, social media had just changed from being something Baby Boomers could park in the far corner, to something he needed to understand to offer meaningful support and guidance to his daughter.

Background – companies & social media regulation

This personal story has played itself out in boardrooms across Australia in the last few years. For important executive types, the growth of social media and the reputational issues associated with its misuse led to the frequent command: “Get me a social media policy”.

Yet, it is one thing for a company to have a social media policy to help manage employee behavior. It is quite another for the policy to work. There are two common problems:

First, the policy often substitutes for careful thought about the conduct to be regulated.

Secondly, the important types behind the policy are often least likely to be on social media themselves. Many only have a basic understanding of how social media works, and lack interest in learning more because of social media’s apparent risks.

Social media regulation in the racing industry

It is now the Australian Racing Industry’s turn to have its social media moment. The cause? Former jockey and registered stable hand Daniel Schmitt, who apparently tweeted a (now deleted) racist remark about indigenous football champion Adam Goodes, the 2014 Australian of the Year, has found himself in hot water with the stewards.

Shane Anderson has provided an excellent summary of the event, the type of comments tweeted by Mr Schmitt, and how the racing industry has taken notice.

He further reports:

Racing Victoria Stewards have opened an investigation into Schmitt’s social media behaviour. As a registered stablehand, he must abide by the Australian Rules of Racing.

As a jockey, he was reminded by Stewards as to his obligations under the Racing Victoria social media policy. Clearly he has been on their radar for similar behaviour.”

That may be so. However, neither the new social media rules in the Australian Rules of Racing nor Racing Victoria’s social media policy apply to Mr Schmitt’s case.

Here are some key assumptions to help explain why:

  • Mr Schmitt is a licensed person under the Australian Rules of Racing
  • He has a personal Twitter feed
  • He tweets about racing related matters, but also other matters
  • Adam Goodes is an AFL footballer, not connected with the racing industry
  • Therefore, the only connection between the offending tweet and the racing industry is that Mr Schmitt is a licensed person.

Now let us consider AR.175(qq) which provides that the Principal Racing Authority “may penalise any person who in their opinion, is guilty of engaging in the publishing or posting on any social media platform or channel any material, content or comment that is obscene, offensive, defamatory, racist, threatening, harassing, discriminating or abusive to any other person or entity involved in the racing industry”.

Effective from 1 June 2015, the new rule was introduced after stewards discussed increasing social media usage problems by licensed persons at the National Stewards Conference in Melbourne earlier this year.

Introducing the new rule, the Australian Racing Board explained it sought to have “a specific and targeted rule dealing with inappropriate social media usage”.

The new rule is so specific and targeted, it only applies to social media comment addressed to someone or something involved in the racing industry. Clearly, comments about Adam Goodes will miss this mark.

Further, the incredibly narrow ambit of AR.175(qq) is demonstrable when one considers a couple of scenarios.

Scenario 1 – According to a plain reading of the rule, the comment must be directed to someone or something involved in the racing industry. The comment cannot be about that person or thing.

On Twitter, this suggests that the person must direct the comment to a particular Twitter handle e.g. @rvstewards rather than simply refer to a particular steward, for the rule to apply.

Scenario 2 – What does “involved in the racing industry” mean? Is the term intended to capture other licensed persons? Might it apply to owners of thoroughbred racehorses? We simply do not know.

Discussing the proposed new social media rule after the Conference, Victoria’s Chief Steward, Terry Bailey, referred to the “detailed policy” we have in Victoria in apparent contrast to the national position.

It is true that Racing Victoria’s social media policy is quite detailed. It can be found here.

However, Racing Victoria’s social media policy also contains a rather important limitation:

It is important to note that this policy does not apply to the personal use of social media platforms by licensed persons where the user makes no reference to Racing Victoria or racing related issues.”

In other words, a racist tweet about Adam Goodes by a licensed person would escape Racing Victoria’s social media policy entirely.

Charges against Mr Schmitt do not rely on the social media rules

Racing Victoria has now reported that Mr Schmitt has been charged for comments on his Twitter feed over the last 12 months. However, unsurprisingly in light of the above, he has been charged under the ‘catch all’ general provision which long preceded the new social media rules:

AR.175A. Any person bound by these Rules who either within a racecourse or elsewhere in the opinion of the Committee of any Club or the Stewards has been guilty of conduct prejudicial to the image, or interests, or welfare of racing may be penalised.”

Stewards allege that a series of tweets published by Mr Schmitt over the past 12 months were offensive, racist and derogatory and that his conduct, as a registered and recognisable participant in the Victorian racing industry, was prejudicial to the image of racing.

AR.175(q) which provides a general offence for misconduct, improper conduct or unseemly behaviour, was an option not pursued by stewards in charging Mr Schmitt, likely because the new social media rule ‘(qq)’ was intended to enhance its operation, although it has proved the opposite in the present case.

Inappropriate and actionable social media comment can be ‘random’

What the racing industry has learned from this incident is that conduct detrimental to its reputation can extend beyond comment about itself or its people.

This is something which employers have been required to grapple with for some time.

21-year-old Cardiff University graduate Rayhan Qadar learnt this to his detriment this year (see report here). He lost his job as a stockbroker after tweeting, under the pseudonym ‘Ray Pew’: “Think I just hit a cyclist. But I’m late for work so had to drive off lol.” For his employer, Mr Qadar’s use of a nom de plume did not save him. Further, other than the suggestion that he was late for work, the subject matter seemed completely unrelated to his job.

A spokesperson for Mr Qadar’s employer said: “One of our employees has failed to conduct themselves to the standards we expect of our staff. We find these online comments totally unacceptable. Upon becoming aware of this issue we have terminated this person’s employment with immediate effect.”

Readers might also recall the recent case of SBS sports journalist Scott McIntyre who lost his job over tweets on ANZAC day such as this one: “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan”. SBS Managing Director Michael Ebeid and Director of Sport Ken Shipp quickly moved to sack Mr McIntyre, reportedly saying he had breached the station’s Code of Conduct and social media policy.

In yet another UK example, a Game Retail employee who held the role of ‘risk and loss prevention investigation manager’ lost his job for tweets which were “offensive, threatening and obscene”, apparently containing diatribes he launched against various groups, including football fans, dentists and caravanners…

These tweets appeared on a Twitter account created for personal use but used for limited work purposes. The Game Retail employee also followed the stores he was responsible for managing to monitor any inappropriate activity by employees of those stores.

Interestingly, at first instance, a tribunal ruled the employee was unfairly dismissed because the offensive tweets were not related to work, did not identify him as a Game Retail employee and were made during the employee’s own time.

On appeal, this decision was overturned on the basis that insufficient consideration had been given to the “public” nature of Twitter, or the employee’s decision not to use Twitter’s privacy setting to restrict who could see his tweets (see report here).

Next steps for racing industry

The Australian racing industry has appropriately decided, explicitly, to address the social media use of its licensed participants. This is an important step.

However, in my view, it needs to take stock of its social media policies and rules on a start again basis.

An appropriate work plan might look like this:

  1. Consider problematic social media conduct in context: Do so after collating examples of problematic tweets, Facebook posts and so on
  2. Form a view of what social media conduct should be regulated, and what (if any) excluded from regulation by reference to this contextual approach
  3. Review social media policies and rules from other sources (e.g. other sporting codes, overseas racing bodies, corporate firms) to help determine what works for the racing industry, and what does not
  4. Consider whether there should be any distinction between treatment of ‘licensed personnel’ as distinct from employees, noting the different regulatory structure of the racing industry
  5. Develop social media policies and rules having regard to points 1 to 4, and review them regularly, given the pace of technology and need to continually adapt

My parting words are a recommendation. The racing industry is becoming social media savvy. Not just punters, commentators and betting agencies are good at it. Its supervising bodies such as @rvstewards and @racinginsider are also engaging effectively with users via social media.

However, on the likely assumption that not all the decision makers are yet social media savvy, do give it a try (perhaps using a nom de plume, and ‘lurking’ rather than interacting when getting started). Like the ‘Baby Boomer father’ in the introduction to this post, for those in a supervisory role, a hands on knowledge of social media is the best way to give licensed personnel appropriate guidance and support.

3 Responses to “Australian racing’s social media rules do not work (plus 5 tips to help)”

  1. juice

    Your (excellent) advice strikes me as being applicable in the whole Reddit/Ellen Pao debacle, where it appears that she simply had no working knowledge of what Reddit actually was and how it worked.

    Ignorance is certainly not bliss in instances where you are required to formulate actual working policies.

    Reply

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