Freedom of contract or freedom of speech

A number of comments on the Folau case have made the point that Folau failed to pay attention to the terms of his contracts with Rugby Australia [1] and also with GoFundMe, with the implication that he has only himself to blame for the outcome .

That’s a cute debating point, but it’s not one that should be used by those of us concerned with protecting workers’ rights. The use of contractual terms to constrain what workers say and do outside working hours is a misuse of the power of employers and a danger to free speech on issues of all kinds. The fact that we don’t like Folau’s use of this freedom shouldn’t lead to a retreat from the principle that, within very broad limits, what we do and say in our own time is no business of the boss.

The issue with GoFundMe is less problematic: funding a legal dispute is not obviously part of the site’s mission[2]. But we should be wary of the idea that Internet platforms should be able to set whatever terms of service they like and interpret them as they wish.

fn1 As with just about everything in this case, the exact status of the contract is a matter of dispute

fn2 neither is this much-mocked request by two layabouts for money to fund a trip to Africa that is beyond the resources of the mother who is currently working two jobs to support them in idleness)..

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