At what point does religious preaching cross over into vilification?
We have all come across something controversial on social media at some point. For Israel Folau’s Instagram followers, that time came on 10 April, when Folau posted an image that said, “Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists and Idolaters – Hell Awaits You. Repent!“
The news of Folau’s Instagram post quickly reached Rugby Australia’s integrity unit who deemed it a “high-level contract breach” of the Professional Players’ Code of Conduct warranting termination of his employment contract. Folau was then given 48 hours to either accept the sanction or appeal the decision. The Sydney Morning Herald reports that Folau has appealed and is opting for an official Code of Conduct hearing.
Folau has defended, and continues to defend, his post by stating that he is “stand[ing] on what the Bible says. I share it with love“.
Does this change your view on whether Folau’s post is justified? Well, it may change a court’s view…
Breaching the code of conduct
This is not the first time Folau has made provocative comments on social media. Folau got a slap on the wrist from Rugby Australia after he made similar homophobic comments on Instagram in 2018.
Folau responded to the controversy with a lengthy article articulating his religious beliefs and explaining that his intention was never to hurt anyone.
This time, however, Rugby Australia and the NSW Rugby Union have publicly stated that they intend to terminate Folau’s contract as a consequence of his conduct. This response is in line with Rugby Australia’s code of conduct which makes it clear that everyone must be treated “equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby.”
But do you think that his latest post, which is just one of the many Instagram posts Folau has made about his religion, should mean the end of his career? Is Folau simply using his platform to spread the word of God as his religion requires of him?
Free speech grey area
When it concerns the law, there is a fine line between freedom of speech and vilification.
Some of the comments that Folau’s post received are demonstrative of the latter, for example:
- “its about f#cking time someone spoke about abit of truth into this world“;
- “Preach the truth. The devil hates the truth“; and
- “You’re a legend mate f#ck the gays freedom of speech“.
So, the question is, has Folau exercised his lawful right to freedom of speech? Or has he incited or encouraged hatred, serious contempt, or severe ridicule against the groups that he named, particularly the LGBTQIA+ community?
In NSW, it’s against the law to vilify people because of their sexuality if the comments are public, could incite or encourage hatred or ridicule, and are not considered to be an acceptable type of free speech.
Acceptable types of free speech include those that are done reasonably and in good faith for “academic…religious instruction…or for other purposes in the public interest, including discussion or debate“.
For Folau, it comes down to whether or not a reasonable person in our multicultural society would believe that he had made his comments for a genuine religious purpose, i.e. spreading the word of God as a devout Christian.
Five tips for employers
What should employers do when faced with this situation?
- Prevention is better than a cure. Make sure you have a robust social media policy and discrimination policy that clearly outlines your expectations.
- Ensure your employment agreements have provisions that prohibit employees from
i) bringing your organisation into disrepute; or
ii) damaging your organisation’s brand in any way.
- Communicate the organisation’s expectations of employees and provide them with training to ensure they comply with the policies. Also consider scheduling the training regularly to keep up with changing community expectations.
- Ensure your employees are aware of, and understand, the consequences of any breach of the organisation’s policies and procedures.
- Deal with any issues promptly and seek legal advice where necessary.
(Read HRM’s previous article on employee’s expressing political views via social media).
Aaron Goonrey is a partner and Justine Krajewski and Ali Redfern are lawyers in Lander & Rogers’ Workplace Relations & Safety practice.
Want to understand how to better manage tricky legal issues that arise in your workplace? AHRI’s short course ‘Managing the legal issues across the employment lifecycle’ will provide you with helpful (and necessary) information.