28 September 2020
A recent decision of the District Court of NSW serves as a warning that emojis do have the capacity to contain defamatory imputations.
In Burrows v Houda  NSWDC 485, the court had the challenging task of determining whether the ‘zipper-mouth’ face emoji, among others, had the capacity of defaming the plaintiff.
The emoji in question was used in a twitter thread concerning the plaintiff’s alleged misconduct as a lawyer. The initial post in the thread suggested that the plaintiff was subject to disciplinary action due to mishandling a matter in court. The defendant replied to the tweet with the zipper-mouth emoji 🤐.
The court applied a broad approach to assessing the potential for emojis to carry meanings and then contemplated the potential meanings conveyed by the zipper-mouth emoji. The court also did not consider the use of expert evidence or a jury to be necessary for this instance as this was not suggested by the parties. There have also been previous rulings on the meanings of emojis in other areas of law without this requirement.
The court found that the ability for emojis to convey a set meaning is clear and “as such are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary”. Referring to the online resource, Emojipedia, the court considered that the zipper-mouth emoji can indicate a secret or “stop talking” in circumstances where a person may impliedly know the answer but is forbidden or reluctant to answer.
Counsel for the plaintiff argued that the zipper-mouth emoji is worth a thousand words and carried the imputation that there was a finding that was damaging to the plaintiff but the defendant was not free to disclose the outcome. The court agreed that such an imputation was “reasonably capable of being conveyed” by the use of the emoji and an ordinary reasonable social media user would make adverse assumptions about the plaintiff.
This decision is notable as it sets a precedent that emojis are capable of containing defamatory imputations and serves as a warning that emojis are not immune from defamation law.
Something to note is that the court’s analysis of the emojis was limited to the desktop Twitter emoji depictions. One consideration which was not addressed by the court would be the potential for emojis to appear differently on different devices and platforms based on the operating system being used. For example, the ‘face with a look of triumph’ emoji (also known as the ‘steam coming out of the nose’ emoji 😤), looks very different between Apple and Android devices and may result in different meanings being conveyed to users.
As emojis become increasingly used in our communication, there is no doubt this area of law will only continue to expand and play catch up 🏃.
Authors: Dan Pearce & Madison Tonkes
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