PRESCRIPT: For international readers who may not be aware of all the identities who are the subject of this post, Israel Folau is an Australian rugby player who is a prominent Australian sportsman, having played successfully in rugby league, rugby union, and Australian Rules football. He was also a member of the Australian national rugby union team, known as the Wallabies. Folau is a conservative Christian who has previously attracted attention for his comments on social media regarding issues such as sexuality. This article was originally published by the Ethos Centre for Christianity and Society, located at http://www.ethos.org.au/online-resources/in-depth-articles/the-israel-folau-controversy
In late November 2019, the ‘Israel Folau controversy’ reached its peak as Folau and his former employer, Rugby Australia (RA), headed to the Federal Circuit Court of Australia to resolve legal action that Folau had initiated against Rugby Australia. This followed an earlier action by Folau in the Fair Work Commission, in which Folau alleged that his termination by Rugby Australia in May 2019 breached Section 772 of the Fair Work Act, which prohibits dismissal on the basis of an employee’s religious beliefs.
Folau had been dismissed by Rugby Australia after it determined, via a disciplinary hearing, that he had breached the inclusivity provisions of Rugby Australia’s Code of Conduct. The alleged breach was in relation to a post by Folau on his Instagram account, in which he stated that ‘hell awaits’ various categories of people – including homosexuals. As a consequence of his dismissal, Folau lost his lucrative sponsorship with sports supplier ASICS, having previously been condemned by Rugby Australia’s major sponsor, QANTAS, for his ‘homophobic’ views.
In early December 2019, Folau and Rugby Australia issued a joint statement in which they announced that Folau’s action had been settled out of court. Rugby Australia agreed to pay Folau an undisclosed amount, and Folau and Rugby Australia apologised to one another for any ‘hurt or harm’ that had been caused.
Given the proximity of the ‘Folau controversy’ to both the fractious debate around same-sex marriage in Australia and the ongoing attempt by the Morrison Federal Government to introduce its Religious Discrimination Bill, the dispute between Folau and Rugby Australia predictably ignited heated commentary. But as partisans on both sides hurled allegations and condemnations at one another, what passed largely unnoticed were the questions and implications the dispute raised about the growing influence of the corporate sector over wider society.
In the wake of this reflective absence, it seems appropriate to consider the wider issues raised by this dispute, and the potentially sinister outcomes that might arise.
2. Some First Principles
Before entering into that wider discussion, it is first necessary to articulate some ‘first principles’ by which the subsequent analysis will be informed.
Firstly, it is not proposed to answer here the question of whether or not Israel Folau’s ‘religious freedom’ was violated. The central purpose of this article is to set out and explore the suggestion that there is a much bigger issue at stake than the specific claims made by Folau; namely, the issue of the influence of corporate and institutional prerogatives on the freedom of society as a whole. It is this influence and its implications that this article will attempt to explore.
Secondly, it is the present author’s view that the post published by Folau on his Instagram page, and which led to his dismissal, was both biblically and theologically illiterate, and therefore warranted both rebuke and criticism. Such a reaction is not itself a violation of Folau’s religious ‘freedom’, and the oft-asserted claim that it is representative of a ‘backlash’ against either conservative Christians particularly, or people of faith generally, is patently absurd.
Thirdly, it seems equally clear that the post that landed Folau in such hot water was published entirely in the context of his status as an individual citizen, and not in his capacity as a member of the Wallabies team; nor did Folau purport to be speaking on behalf of Rugby Australia or of anyone else except himself. That they represent Folau’s genuinely held and religiously grounded views – however liable to criticism such views might be – is incontestably clear.
Fourthly, it is manifestly evident that, had Folau’s post not included the word ‘homosexuals’, the whole ‘controversy’ would never have arisen. On the one hand, given the hostility and discrimination to which the LGBTIQ community has, and continues, to be subject, it cannot be denied that, regardless of his own intentions, Folau’s post could be seen to be inciting or provoking hatred against same-sex attracted persons. On the other hand, the very fact that almost all the response to, and reporting on, Folau’s post zeroed in on his use of the word ‘homosexuals’ seems indicative of wider society’s unhealthy fixation with, and fetishisation of, sex and sexuality. Had Folau stuck to categories such as ‘atheists’ without mentioning ‘homosexuals’, no-one would have cared much about his post, precisely because ‘atheists’ as a category desexualises people. But the fact that he did use the word ‘homosexuals’, and that this one word prompted so much response, indicates sex’s ongoing power to titillate, sensationalise and trivialise.
In sum, therefore, the position taken for the purpose of this article is that, while Folau’s post warranted the severest public criticism and rebuke, it is an altogether different thing to argue that it also warranted the termination of his employment. It should be clearly understood that this conclusion is not a defence or justification of Folau, nor is it an argument that Folau ought not to have been challenged about, or made accountable for, his Instagram post. Rather, it is to argue that such accountability is not the preserve of corporations or commercial interests primarily concerned with ‘brand reputation’; the task of public accountability lies properly within the domain of society as a whole. Indeed, when society surrenders this prerogative to ‘surveillance capitalism’, it abrogates its responsibility to its own integrity, resulting in an oppressive censorship far more real and damaging than any ‘restriction’ that Folau might claim to have undergone.
3. Surveillance Capitalism and Censorship
The Folau case is indicative of the extent to which corporate and institutional prerogatives have invaded and occupied the whole sphere of human life. The very fact that Rugby Australia feels it has the right to subject its employees to a ‘code of conduct’ that not only mandates what they can and can’t publicly express as private individuals, but that also presumes to make them liable to punitive outcomes as a result, is a troubling indicator of the extent to which ‘surveillance capitalism’ has become a normalised principle within the wider sphere of corporatist capitalism. Rugby Australia would no doubt defend this ‘right’ on the grounds that they are ‘entitled’ to defend their public – i.e.: ‘brand’ – reputation and that, as an employee, Folau should not have acted in a way that damaged this reputation. Whether or not Folau’s comments actually damaged Rugby Australia’s ‘brand reputation’ is highly contestable; the more important question, however, is whether ‘brand reputation’ – and the corporate prerogatives it represents – should be the decisive factor that determines what individual citizens in a free society can and cannot say.
In this context, it should always be borne in mind that ‘brand reputation’ (like ‘social responsibility’ – for which, see more below) is, in fact, a facet of corporate and institutional marketing. Given that Rugby Australia is facing a rocky commercial future – declining crowds, decreasing media audience, and difficulties with securing broadcaster sponsorship – one could be forgiven for thinking that Rugby Australia’s response to Folau was motivated less by any concern for the impact of Folau’s remarks upon the LGBTIQ community and more by a concern that members of the LGBTIQ community (and their supporters) who are also rugby fans might be turned off the game, however temporarily. Seen in this light, Rugby Australia’s action against Folau comes across not so much as an exercise in ‘inclusivity’ as an exercise in income protection.
Rugby Australia would no doubt object to this characterisation of their dealings with Folau. But the fact that ‘brand reputation’ is so closely linked to corporate and institutional marketing goes to the heart of the issue: how do we deal with public comments made by someone (especially someone with a public profile) that we find offensive, objectionable or otherwise injurious? Do we as a society find some way of informing the individual concerned that their comments are offensive and objectionable without removing their capacity to participate in public life and discourse – or do we allow corporations and institutions to make that determination for us, based on their ‘codes of conduct’ and the prerogatives of ‘brand reputation’ that such ‘codes’ enshrine?
We can illustrate this point with a little bit of speculative imagination. What if, instead of the Instagram post he did publish, Israel Folau had instead posted a message criticising Rugby Australia for its employment practices – for example, on the grounds that it did not employ sufficient numbers of ethnic minorities on its staff or in its management?
Or what if he had put up a post criticising Rugby Australia for its environmental policies – for example, arguing that Rugby Australia wasn’t doing enough to minimise its carbon footprint and was thus making the situation worse for Pacific Island nations threatened by rising flood waters?
And – bearing in mind that the post for which he was sacked didn’t mention Rugby Australia or rugby at all – what if, in response to such hypothetical posts, Folau had been sacked by Rugby Australia on the grounds that such posts had damaged Rugby Australia’s ‘brand reputation’, had violated its ‘ownership’ of that ‘brand’ and had constituted a breach of his employment conditions?
It is interesting to speculate on the public reaction that might have eventuated under such circumstances. On whose behalf – and against whom – would the subsequent public and media outrage have been directed? Israel Folau? Or Rugby Australia? And if the public response had been one of rallying behind Folau, would that have been on the basis that such hypothetical posts were ‘progressive’ or ‘constructive’ or ‘not of the same nature’ as the post for which he actually got fired?
It might be contended that this is all speculative and beside the point, but in truth it goes directly to the heart of the matter. For once we allow corporations or institutions the power not only to determine what constitutes appropriate speech, by whom it can be spoken and under what circumstances it can be spoken, but also the power to act punitively against individuals on the basis of their ‘brand reputation’, then none of us is safe. Left, right, centre, progressive, conservative – if a corporation deems your perspective to be inimical to their ‘brand reputation’, and if they have the power to act against you, they will. Because what corporations are interested in protecting is not free speech or societal diversity or even the creation of ‘safe spaces’ – what they are interested in is their own commercial self-interest. It won’t matter from what perspective your worldview is derived, nor what the content of it is; if a corporation or institution deems it to be an assault on their ‘brand reputation’, that is the basis on which they will act against you.
And it is this very prospect that speaks to the problems and issues that flow from the status of corporations and institutions as legal ‘persons’. The legal justification for this status is that it enables action to be taken against corporations and institutions, and also makes them subject to the law of the land. This works well enough when it is one corporation or institution acting against another, or the state acting against a corporation or institution. But when a corporation or institution acts against an individual citizen or even a community, problems immediately emerge.
Despite the fact that ‘Rugby Australia’ is a ‘legal person’, there is no one individual ‘person’ called ‘Rugby Australia’ with whom an actual individual can interface or against whom they can act. ‘Rugby Australia’ doesn’t actually exist in the sense that I, the writer of this article, and you, the reader, do. Rather, it is ‘represented’ by various individuals, such as the people who run its operations; but none of these people are the ‘legal person’ known as ‘Rugby Australia’. Thus, these ‘representatives’ are free to act and make decisions that no actual individual person is free to do, precisely because the ‘representatives’ know that it is the non-existent legal ‘person’ called ‘Rugby Australia’ who is liable at law. The ‘legal person’ of the corporation or institution acts as a shield against personal responsibility, creating a power imbalance that immediately places actual individuals and communities at a huge disadvantage. The result is a culture of self-censorship in order to avoid the potentially ruinous prospect of being acted against by a corporate or institutional ‘person’.
The fact that Israel Folau was a ‘celebrity’ sports person, whose public profile and community standing enabled him to raise sufficient funds to mount a significant case against Rugby Australia, indicates his status as the exception who proves the rule. Indeed, it was probably Folau’s status as a ‘celebrity’ and the public controversy surrounding his dismissal that did more damage to Rugby Australia’s ‘brand reputation’ than his initial Instagram post. Consequently, Folau was more or less able to fight Rugby Australia to a standstill; conscious of the ‘bad optics’ that the whole sorry affair presented, Rugby Australia were highly motivated to bring the legal proceedings to a bearable – and confidential – conclusion.
But the very ambiguity of this outcome disguises the bigger issue at stake in these proceedings, an issue of far greater import than Rugby Australia’s ‘brand reputation’. For if Rugby Australia had been able to successfully defend itself against Folau’s claims, or otherwise force him to abandon his action without settlement, it would have been indicative of the extent to which we have become a society of ‘wage slaves’ – that is, a society of supposedly ‘free’ people who are in truth controlled by corporate and institutional actors. Indeed, given everything noted above, it is arguable that we already are just such a society, and that Folau’s ‘success’ only masks the dehumanising reality. But even if this is not already the case, once a corporation or an institution is not only able to mandate what individual citizens are able or not able to publicly say, but is also able to enforce that mandate with punitive action, this will very likely mark the point at which our society ceases to be free, and our democracy becomes little more than a straw man manipulated by corporate and institutional self-interest.
4. Corporate Social Responsibility: The Mask of Hypocrisy
A further dimension to this issue has emerged in the wake of Israel Folau’s signing by the French rugby league club, the Catalans Dragons. This is the issue of ‘corporate social responsibility’ and the manner in which commercial entities use CSR to hypocritically mask their own injurious impact on society.
In response to the signing of Folau by the Catalans Dragons, the Board of the Super League (the competition in which the Dragons play) announced that it had unanimously agreed to amend its constitution to ensure that in future it had the power to prevent the signing of ‘controversial’ players like Folau.
The Board justified its decision by stating that rugby as a sport has a ‘proud history’ of supporting inclusion and diversity and that the signing of Folau is contrary to the values it wishes to promote.
This response is representative of ‘corporate social responsibility’ in action – that is to say, the appropriation by the corporate sector of apparently pro-social values in order to ‘position’ themselves in a certain public light. As with ‘brand reputation’, corporate social responsibility is part of most commercial entities’ marketing program: it is a mechanism through which they can project a public image that they think will assist their drive toward profitability.
This is nowhere more evident than in the Super League’s response to the signing of Folau by the Dragons – a response that purports to have been made in the wider interests of society. And the hypocrisy of this posturing is clear once closer examination is made of the Super League itself.
The Super League is actually known as the Betfred Super League. It is called the Betfred Super League because it is sponsored by a company called Betfred. Betfred is an English betting corporation whose activities include sports betting, online betting, online casinos and lotteries.
Betfred is registered in Gibraltar, a notorious tax haven. As both the Paradise Papers and the Panama Papers make clear, tax havens are a mechanism through which wealthy individuals and corporations not only hide their wealth, but avoid making a proper contribution, through taxation, to the public weal. Whether the tax haven concerned is a ‘no tax’ or ‘low tax’ haven, the result is the same: widespread and systemic economic inequality, often impacting most egregiously upon the poorest and most vulnerable members of society.
In other words, the Super League is sponsored by a company that, by virtue of its registration in a known tax haven, contributes to the pattern of worldwide economic inequality.
Further, as the experience with pokies and other forms of gambling in Australia has shown, gambling platforms are often targeted at, and made available to, people who are especially vulnerable to gambling addiction. This in turn frequently results in theft and fraud for the purpose of funding a gambling addiction. Despite the fact that jurisdictions such as the UK have legal requirements mandating the undertaking of ‘source of funds’ checks by betting companies to ensure gamblers are not utilising the proceeds of crime, Betfred has been repeatedly caught failing to abide by such provisions. For example, in 2016, Betfred was fined ₤800,000 by the UK Gambling Commission because of violations of money laundering and social responsibility regulations. In 2018, the same Commission fined Betfred and others ₤322,000 for (again) failing to abide by money laundering regulations.
In other words, the Super League is sponsored by a company whose business model not only contributes to enormous social damage via problem gambling, but which has repeatedly failed to uphold its legal obligations to ensure stolen money is not being used for gambling purposes.
Betfred is owned by brothers Peter and Fred Done. The Dones are billionaires, and own another company called Health Assured. Health Assured holds multiple contracts with the UK NHS, contracts that have earned both brothers millions of pounds in dividends. Through these contracts, Health Assured delivers, among other things, services to recovering gambling addicts – the very species of addiction that the Dones’ other company, Betfred, helps to create.
In other words, the Super League is sponsored by a company whose billionaire owners play both ends against the middle, on the one hand contributing to problem gambling and, on the other, earning millions from taxpayers to solve the problem they helped create.
Given the high-flown rhetoric that the Super League board have utilised in the case of Israel Folau, it would be interesting to hear them explain what ‘values’ they saw themselves promoting through having Betfred as their sponsor. But the hypocrisy embedded in this dichotomy illustrates how ‘corporate social responsibility’, like ‘brand reputation’, is motivated less by positive social principles than it is by cynical self-interest. It also indicates how corporate prerogatives act as a mechanism for censorship: any player desirous of having a fruitful career is not likely to speak out on issues that Super League deems to be ‘controversial’. That, presumably, includes making comment about sponsor Betfred’s dubious corporate history.
It also highlights the problematic nature of banning people in the name of ‘inclusivity’ and ‘diversity’. Once you establish banning criteria that revolve around allegedly ‘positive’ social principles, it immediately becomes apparent that just about everyone could be banned as a result. And yet a blind eye is turned to this reality when it proves inconvenient. One wonders, for example, whether Super League would allow a player with a record for violent offences against women or minorities to be signed up by one of its clubs; and yet it is fully prepared to have as its sponsor a company that has repeatedly breached its legal obligations and has been fined by regulators accordingly. It appears that ‘social responsibility’ as a banning mechanism applies only for some actors but not for others.
Illustrating the inherent hypocrisy of the Super League’s response is not the same as defending or excusing Israel Folau. Rather, it points to the reality that, in the midst of the whole ‘Folau controversy’, there is a much larger and much more dangerous issue going unnoticed. Moreover, this danger is being disguised under the trappings of ‘corporate social responsibility’, through which the natural sympathies and solidarity of human beings are being co-opted for pernicious commercial purposes.
One might argue that if society is going to hand over to corporations and commercial entities the power to ban people from pursuing their profession, or censor their public commentary, we should at least insist that they themselves have no connection with, nor receive any benefit from, other socially harmful industries and organisations. Under such circumstances, the hypocrisy of ‘corporate social responsibility’ might at least be mitigated by some marginally beneficial social outcomes.
The Instagram post published by Israel Folau, and which led to his dismissal by Rugby Australia, was of such a nature as to justifiably warrant the severest public censure and rebuke. They were also his genuinely held beliefs that he expressed as a private citizen on his own media platform while operating in an allegedly free society. Within the tension of this apparent contradiction lies the dilemma of every community that would preserve both individual liberty and protect its citizens from harmful and injurious commentary.
The Folau case is notable, not for whether or not it represents an example of ‘religious freedom’ being impinged upon, but as an illustration of the insidious ways in which corporations are inserting themselves into the social ‘gaps’ created by the tension between individual liberty and the protection of vulnerable groups within society. This insertion is occurring through the promulgation of ‘codes of conduct’ that are becoming ever more censorious and restrictive, and that are becoming an ever more frequent ground upon which corporations and institutions are acting punitively against their own employees. The result is an increasing expansion of the sphere of corporate and institutional influence into all the realms of human life, co-opting apparently pro-social principles in the name of ‘brand reputation’ and the corporate prerogatives this embodies.
The Folau case is a wake-up call. Not to the need for more or less ‘religious freedom’, but to the ways in which corporations and institutions are exploiting social tensions to market and ‘position’ themselves in ways that serve their commercial self-interest. When ‘corporate social responsibility’ becomes both the mechanism through which corporations manufacture a self-serving social image, as well as a means by which they can silence critics of that image, they become the arbiters of what human freedom looks like, as well as the conditions under which it can be exercised. Under such circumstances, freedom ceases to exist, and communities become little more than extensions of the corporate will.
Perhaps once the fuss has died down, more sober reflection of the real lessons of the ‘Folau controversy’ will prompt a reassessment of our relationship with the corporate world. Only once this occurs can the insidious and censorious influence of ‘codes of conduct’ be held in check, and a more human basis for social and institutional relations established. The Folau case, however, indicates that we are running out of time; and, as with climate change, once we go past the tipping point, it may be too late for us all.