Insights into litigation, sports law, media and legal culture

UPDATED: About Schmitt: How RAD Board handled social media case

After this post was published, the RAD Board published its reasons.  They can be found here.  This resolves a concern noted in this post. As readers now have the benefit of the reasons, I do recommend that you have a look at them and make up your own mind.

On 31 July 2015 the Racing Appeals and Disciplinary Board dealt with the social media transgressions of a stable hand, Mr Daniel Schmitt.  I have previously outlined some of the difficulties with Australian racing’s existing social media guidelines, which you can see here.

Mr Schmitt pleaded guilty to two charges of AR 175A which provides:

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.

In light of the guilty plea, the Board found both charges proved with convictions recorded.

Interestingly, on the question of penalty, and with a nod to defamation where an apology is an appropriate remedy, it was ordered that Mr Schmitt write letters unreservedly apologising to the AFL players Mr Adam Goodes and Mr Bachar Houli via their respective AFL Clubs (in relation to Charge 1) and to the Chairman of Stewards Mr Terry Bailey (in relation to Charge 2) within 14 days of the hearing.

However, were this a defamation matter, such an apology could not be ‘ordered’, unless by consent.  This is because an essential characteristic of an apology is considered to be its voluntary and subjective nature.  An apology is the outward expression of regret or sorrow that a person feels.  A person must feel genuinely sorry for the harm caused; it is not a feeling which can be imposed on a person.  For that reason, the law tends against the concept of ‘specific performance’ of personal, voluntary obligations such as this.

The reasons for the Board’s decision have not been supplied, and so it is unclear whether or not Mr Schmitt suggested the apology himself.

If Mr Schmitt did not himself propose the apology, one must question the merits of ordering that someone write words on a page and send it to a particular address.

The decision has been criticised for not going far enough, having regard to the racist nature of some of the offending tweets.  For a reasoned analysis, see Shane Anderson’s article.

Failing compliance with the order, the Board will reconvene to consider penalty, otherwise the matter will be concluded.

In defamation law, where an apology is not supplied and the claim is successful, damages are usually ordered.  The aim of this money is to compensate the victim for hurt feelings, and also to enable that person to tell others whose opinions may have been impacted by the defamatory imputation(s) that they have been awarded damages, in lieu of an apology.

However, there is much to be said for more lateral ideas when it comes to dealing with the effect of harmful speech.  Perhaps this could involve the transgressor being required to participate in the next series of the SBS television series ‘Go Back to Where You Came From‘…

There is also much to be said, as I suggested in my previous post, for ensuring that the decision makers have a working, and ideally, hands on knowledge of how social media works.  If such training were undertaken, and then promoted, it would help mitigate against any suggestion that the decision makers are out of touch.

Given the ground breaking nature of the decision, being the first Australian racing disciplinary proceeding concerning social media misuse, it is disappointing that reasons were not supplied.  One feels that there was the potential for a ‘teaching moment’ which was overlooked.

As for Daniel Schmitt, it appears he has taken some proactive action of his own. He has changed his Twitter status so his tweets are now protected, meaning they are unavailable unless to confirmed followers.  Of course, his 663 followers (at date of writing) may not all share his view of the world, and so this should not be considered substitutable for that old-fashioned concept of ‘think before you speak’.


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