Monday 28th August
Jordan Rinsler – Student on the Mishcon De Reya Sports Law Academy
“You’re nothing, you’re a fool, you’re a waste of time!”
“Fella, don’t talk about spend. Talk about net spend.”
“IT’S TIME TO GO!”
You might be forgiven for dismissing these as merely the angry rants of a football fan at the pub, consoling themselves after another defeat and calling for the manager’s sacking. You wouldn’t be entirely wrong.
These quotes are actually taken from football fan channels that have sprung up across social media and taken the online football fan world by storm. The Redmen TV (Liverpool FC) have over 154,000 subscribers on YouTube, FullTimeDEVILS (Manchester United FC) have over 336,000 and most infamous of all ArsenalFanTV (Arsenal FC) have over 413,000. That Gary Neville referred to ArsenalFanTV during some post-match analysis on Sky Sports in February, demonstrates the degree of outreach that fan channels have had, seeping into online popular culture and the elite echelons of professional football alike.
Yet as these fan channels grow, what are the potential civil legal implications?
Whilst the majority of football fan channels’ content is made up of interviews with fans outside the stadium, they have produced the odd video from within stadiums to promote the atmosphere. But with a real emphasis on continued growth and innovation, there is a danger that these channels could divert to distributing clips of match highlights seconds after they happen. Their main social media platforms including YouTube, Twitter, Facebook and Snapchat would certainly facilitate this.
However, there is huge potential for this to be in breach of copyright laws. In English Cricket Board (ECB) and Sky UK Limited v Tixdaq Limited and Fanatix Limited (2016), it was held that an app which allowed users to post 8-second clips of live cricket matches infringed copyright. The legal arguments centred around two main points:
- Can it be argued that apps are capable of broadcasting a “substantial part” of matches?; and
- If so, did this harm Fanatix’s wider defence of “fair dealing” under s. 30(1) of the Copyright, Designs and Patents Act 1988?
Summating, the High Court held whilst users could only post 8-second clips and thus were not able to broadcast a quantitatively “substantial part” of the game, the fact that they were able to broadcast key moments such as wickets and sixes meant that the app allowed users to distribute qualitatively “substantial parts” of matches. Therefore, Fanatix were in breach of copyright law. Additionally, it was held that the app’s primary aim of video clip distribution was for commercial purposes rather than for journalistic motives.
Both of these points would very much apply to football fan channels as:
- Should fan channels progress towards releasing match highlights, the likelihood is that they would be releasing videos of goals, whether from open play or from set-pieces. This would fall under the category of ‘qualitative substantial parts’ and would mean that fan channels were breaching copyright law; and
- Whilst they might argue that releasing clips was aimed at breaking news to fans on social media, in reality that incentivised enormous commercial gain. Today, self-styled ‘YouTubers’ earn money based on viewing numbers, with the more successful ones make a living from it. There is every chance that fan channels might consider releasing live highlights, knowing that this brand new feature would increase their viewing numbers and subsequently, increase their income. Clearly, this could not be defended as a “fair dealing” and would also breach copyright.
Deliberately exposing the public to misinformation (‘fake news’) has had considerable recent media coverage. Not least in the football fan community has this been exploited, with social media voicing pure myths as the truth. Football fan channels can be a hotbed for such activity.
Many fan channels claim that their primary aim is to give ordinary fans a voice and allow them to give their opinions on the state of their club, no matter how outlandish these might be. Could this ardent defence of freedom of speech come at a price, with just a single unsavoury and explicit interview leading to a case of defamation being raised in the courts? Does this sound far-fetched?
Fan channels and their broadcast platforms are far less regulated in terms of video content compared with traditional media sources. Is it right then that supporters can appear on fan channels, explicitly berate individual players and almost certainly get away with it? To outdo them, might other supporters then be more shocking, potentially pushing such scenarios into the realm of libel?
Monroe v Hopkins (2017), demonstrates that unacceptable social media output can be controlled by the requirement in s. 1(1) of the Defamation Act 2013, namely: that the statement is “likely to cause serious harm to the reputation of the claimant.” Through their use of Twitter, YouTube and alike, fan channels can air defamatory opinions to a vast audience and subsequently may be found responsible for causing serious reputational harm to its targets. By promoting raw emotion and encouraging uncensored anger, fan channels may expose themselves to being challenged in the courts for defamation.
Is suggesting fan channels having the influence to cause such reputational damage exaggerated? Given the influence that ArsenalFanTV has had on vociferous ‘Wenger Out’ protests, perhaps Arsène Wenger’s legal team may feel by now having defamed their client, they must surely seek to remedy this in the courts.
Whether ultimately civil law bites is predicated on just how much fan channels can grow. Perhaps, say within a year, the novelty could have worn off with fan channels suffering from declining viewing figures. Alternatively, they might continue to develop, using tactics such as broadcasting live match day highlights and more shocking interviews to promote themselves. If that transpires; that this will test the law will be inevitable and compelling.
This article was written by a student of the Mishcon Sports Law Academy and as such does not necessarily represent the view of Mishcon de Reya or its partners/employees. The Mishcon Sports Law Academy is part of the firm’s graduate recruitment process. It is open to aspiring lawyers who are able to attend a series of evening seminars in London.
Please see www.mishcongraduates.com for more information or to apply.