Examining instances where chanting at football stadiums is actionable under the law and questioning whether enough is being done in the game

Chants at football stadiums are a part and parcel of the beautiful game. As someone who has been to matches both home and away in several different stadiums up and down the country there is something quite special about thousands of individuals coming together and singing the songs or chants synonymous with their club. Whether it be ‘You’ll Never Walk Alone’ reverberating around Anfield, ‘Glory, Glory Man United’ resounding around Old Trafford, ‘Blue is the colour’ at Stamford Bridge, or the newly adopted ‘The Wonder of You’ at The Emirates, these songs can have a quite spine-tingling effect on the supporters within a stadium.

So too can the classic chants known almost instinctively by the fans of every club. For example if I were to say “what do you think of Tottenham…?” I am assured that several thousand people will respond with a singular word to describe their opinion of the other North London club. Of course sometimes it is the more spontaneous or off-the-cuff chants aimed at a player’s most recent private life and off the field activities that illicit the most raucous joy from fans during a match. This is supposed to be “banter” between players and fans. All a part of the game. But at what point does this “banter” cross the line and become actionable in law?

Obviously you cannot chant or sing anything or everything within a stadium under the heading of banter. Racialist chanting at football matches is a criminal offence under the Football Offences Act 1991. The offence is aimed at specific behaviour within football grounds at designated matches and was introduced to combat the problem of mass racist chanting. The offence is committed when a group of people, or one person acting alone, chants something of a racialist nature at a designated football match. To prove this offence, the prosecution has to show that the chanting, was threatening, abusive or insulting to another person because of that person’s colour, race, nationality (including citizenship) or ethnic or national origin.

The Crown Prosecution Service do not have to prove that the chanting was directed at a particular individual or group, although it will obviously often be directed at a player or players from Black and minority ethnic communities. If convicted, the accused person can be fined, and, in addition to any other penalty, banned from attending football matches both within this country and abroad.

The crime does not apply to chanting which is of a religious nature. In such circumstances, it would be more appropriate to charge religiously aggravated public order offences. The Racial and Religious Hatred Act 2006 came into force on 1 October 2007. It created the new offences of stirring up religious hatred, which are significantly different from the race hate offences contained within Part III of the Public Order Act 1986.

The offence is committed if a person uses threatening words or behaviour, or displays any written material, which is threatening, if he intends thereby to stir up religious hatred. Threatening is the operative word, not abusive or insulting. Possession, publication or distribution of inflammatory material is also an offence. The offence can be committed in a public or private place, including a football stadium, but not within a dwelling, unless the offending words and behaviour were heard outside the dwelling, and were intended to be heard. The defendant must intend to stir up religious hatred; recklessness is not enough.

In 2012, Peter Herbert, chairman of the Society of  Black Lawyers, described Tottenham’s attitude to the use of the word ‘yid’ by both home and away supporters as being ‘40 years out  of date’, and said that if such chants continue they would ask the police to bring a prosecution for racism. The society claim such chants either by  opposition fans or Spurs supporters themselves are anti-Semitic and unacceptable in contemporary society. As part of a 10-point plan to tackle racism in football, they are threatening to report to the police any anti-Semitic chants heard at White Hart Lane unless Tottenham and the FA agree to take action. Herbert also says that ‘hissing’ noises made by  away fans at White Hart Lane, a reference to the gas  chambers in the Holocaust, are equally intolerable and will also provoke a complaint from his organisation.

So racial and religious hatred are quite obviously actionable at a football ground in law but what about chanting that does not cover either of those categories? What about chanting or other actions that could probably best be described as incredibly distasteful? In February 2011 a Crawley Town fan was arrested by police and banned for life by the club after taunting Manchester United over the Munich air disaster in the video for their official FA Cup song. Crawley officials reported him to police after a United fan noticed the 19-year-old making aircraft gestures in the video, which had been posted on YouTube ahead of the fifth-round clash between the sides. A statement issued from Sussex Police at the time read: ‘The man from Crawley was arrested under the Public Order Act on suspicion of causing  harassment, alarm or distress…’

Similarities can be drawn with the recent disturbance during the final of the Olympic 100 meters at London 2012 where a sports fan hurled a bottle onto the track. On 11th January 2013 Mr Ashley Gill-Webb was found guilty of intending to cause the 100m finalists harassment, alarm or distress by using threatening, abusive or disorderly behaviour, contrary to Section 4 of the Public Order Act as well as an alternative charge contrary to Section 5 of the act.

Obviously the problem with charging an individual for a public order offence is that they need to be identifiable. What if you have whole sections of a football stadium singing about the Munich air crash or the Hillsborough disaster? There can be little doubt that the singing of such chants by certain fans is intended to cause harassment, alarm or distress to the opposition supporters by using threatening, abusive or disorderly behaviour. However, short of conclusive video evidence, such as in the Crawley Town case above, it would be almost impossible to prosecute successfully. One might also argue that it would not be a prudent use of Police and CPS resources to prosecute large numbers of football fans over a song that has, unfortunately, been sung for decades by large numbers of football supporters.

So if we accept that criminal law does not always offer sufficient protection what about a civil remedy, especially in instances where a crowd singles out an individual at a match? The most obvious example of this would be certain songs sung towards Arsenal Manager, Arsene Wenger, that suggests he has, as a Guardian piece from some years ago said, ‘a highly deviant sex life involving not only women, not even just men, but also children.’ Undeniably, to suggest that an individual is involved in paedophile activities, especially without any evidence to support the allegation, is highly defamatory. If an individual were to put the allegations into print then Mr Wenger would be perfectly within his rights to sue for libel. Likewise if someone were to walk up to him at a football match and say he was “just a French Jimmy Savile” he could sue them for slander. Indeed at the time the rumours first emerged in England several years ago Wenger was advised that he could not simply sue the newspapers for libel unless they specifically published the charge made against him. He did, however, rapidly take on board, when it was explained to him, that he could sue for slander if any of the reporters outside could be persuaded to put a name to the rumour in front of witnesses. Unfortunately at the time none of the journalists waiting outside of Highbury’s marble halls were willing to take the bait and while the papers never again wrote of the allegations the chanting has persisted from supporters of several rival clubs.

As with public order offences, claims for defamation must have an identifiable defendant. But is that the correct approach given the circumstances we find ourselves in? In 2009, Michel Platini said that “The supporters are the lifeblood of professional football – they are the identity of the clubs. Owners, coaches and players change but supporters always remain.” Many clubs state that their fans are the ambassadors for the club, so with that in mind should a club whose fans sing chants about Arsene Wenger being a paedophile, or Robin van Persie being a rapist, or that Ashley Cole has a particular penchant for mobile phones, or repeating the Dave Jones child abuse allegations, be held vicariously liable for the acts of their supporters?

Now perhaps that is a bit of a stretch and could open the courts up to a plethora of litigation. Conceivably players like Frank Lampard would be able to sue a club directly every time their fans suggested that he was carrying a little too much timber. Harry Redknapp could sue every time fans suggested he has the richest dog in the Premier League. Robin van Persie could sue for being described as a sub-par Dennis Bergkamp. Every single chant, even those meant in a humorous or satirical manner as opposed to those with malicious intent, would be open to judicial scrutiny with clubs having to defend their supporters about whether or not a particular chant was defamatory to an opposition player or manager. Of course common sense should tell you that calling someone a paedophile or rapist is a far more defamatory than a clearly physically fit sportsman being called fat, but then again the history of jurisprudence is littered with instances where common sense has not prevailed.

In the past certain clubs have tried to halt the singing of malicious and distasteful chants by their fans. Sir Alex Ferguson has pleaded with Manchester United fans to stop singing songs relating to the Hillsborough disaster. Liverpool Manager, Brendan Rogers, this year condemned the Munich chants and urged for them to stop. Ferguson has also likened the chants aimed at Wenger to be as distasteful as those sung about Hillsborough or Munich. Arsene Wenger himself has always called for Arsenal fans to be respectful of former players such as Ashley Cole, Samir Nasri and Robin van Persie and to not abuse them. However, even calls to cease and desist from some of the most well-respected coaches at some of the biggest clubs in the world fall on deaf ears amongst supporters.

Perhaps a change to the common law, new legislation on defamation, or a change in the attitudes of the footballing authorities could bring some respect and dignity back into the game. FIFA, UEFA and the FA have regulations to deal with racist chanting and have the ability to fine clubs or force them to play games behind closed doors, albeit I have previously argued that these regulations perhaps do not go far enough. The FA’s Respect Campaign which aimed to improve the conduct of all those involved in the game including supporters, players, coaches and referees, has generally been seen as a failure, but perhaps a rethink and relaunch with tougher penalties for those who fail to show the proper respect for individuals involved in the game could help.

As Ian Ladyman wrote earlier this season; Nobody wishes to turn a visit to Old Trafford, Anfield or indeed the Emirates into an experience akin to a trip to the theatre. The edge, humour and depth of feeling that has always characterised an afternoon at an English football stadium has already been threatened by seated stadiums, rising ticket prices and peculiar kick-off times. However, I would argue that there are some things that are beyond the pale and should be actionable, either by the footballing authorities or by the rule of law and until such action is taken more and more of these chants will be heard up and down the length and breadth of the country and condoned by the masses as just purely banter.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.