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17 Sep 2020

OMG! Australia's first emoji defamation case – context can impute meaning

By Ian Bloemendal, Luke Furness

Be careful what you tweet about! Even emojis can defame. They are illustrations with which are capable of being given meaning.

Whether words, images, or modern hieroglyphics, it's essential to know what you're saying and how it can be interpreted. Australia's first Emoji-related defamation case has a wise lesson on internet-speak: If you don't understand it, don't use it (Burrows v Houda [2020] NSWDC 485).

The tweets in question

A lawyer tweeted a link to a newspaper article about a judge allegedly referring another lawyer for possible disciplinary action in circumstances where it was claimed that the judge had made scathing remarks about her competency. A number of other people "liked", "retweeted" and commented on the original tweet. Helpfully, the District Court has published screenshots of the tweets and surrounding context:

A number of third parties replied to the original tweet. Recent case law confirms that a social media account holder can be the publisher of comments and replies for defamation purposes where they have sufficient control of the account and particularly when they encourage or incite third parties to engage.

This case involved an interlocutory application in which the defendant took objection as to whether certain emojis (standardised, hieroglyphic-style internet images) were capable of conveying the imputations alleged, that is, that a lawyer was guilty of misconduct and was being disciplined or investigated.

Do you know what these emojis mean?

In a modern and novel approach, the Court used an informal online dictionary "Emojipedia" for guidance. From that, the Court found the following possible meanings:

  • [Zipper-mouth face] = “a secret” or “stop talking”, in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer.
  • [Face of clock] = "time is ticking", impliedly for someone. In this case, the lawyer allegedly accused of misconduct.
  • [Three emojis together (Collision, Face with Tears of Joy and Ghost)] = "something exciting" or "yay!"

The Court did not adopt these exact definitions but was clearly assisted by them.

Interestingly, the Court also said that it did not need expert evidence to work out what the emojis meant. This was perhaps facilitated by neither party suggesting that expert evidence was required. Future cases may take a different course if a Court found that internet communication was an established body of expertise.

Were they defamatory?

The Court found that the words and emojis in the comments and replies were capable of conveying the alleged imputations. An ordinary reasonable reader of tweets will derive the meaning of the imputation from the circumstances surrounding the tweet. The Court said this was a case of "joining the dots" on social media between the emojis and the surrounding context which included links to articles about the alleged misconduct.

Importantly, this was only a first step in the dispute. The application to the court was on the narrow point of whether certain words and emojis were capable of conveying the alleged imputations. That is one of several hurdles to clear in a defamation dispute. This was an example of an attempt to resolve a threshold issue early. The idea is that hopeless defamation cases are knocked out quickly.


What do we need to do with emoji communications?

  • Do not use emojis, emoticons or memes where you are not sure of their meaning or where meaning is ambiguous. The test in defamation is not what you think it means or wanted it to mean, but what imputations the words and images are capable of giving rise to.
  • Think broader than defamation only. This lesson can apply wherever meaning matters. Think about:
    • Sending emails to employees. Do I objectively know what it means or is capable of conveying, or could I be accused of misconduct?
    • Posting about competitors. Is it playful or is it capable of being misleading and deceptive?

If you are unsure, check Emojipedia as a first step before getting a sanity check from others. (The Court noted that emoji "are extensively used as a form of hieroglyph for meanings and as such are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary"). This may save a lot of grief.

  • Be careful what you are liking, commenting or responding to tweets that are capable of impacting a person's reputation. Ask yourself whether someone could "join the dots" between your innocent remark and a more high risk statement.
  • In particular, you don't want to be liable for what third parties say. Heated chains of comments and replies may cause grief for you as the account holder. Be vigilant in checking what is posted to your account and take down any material that could create liability for you.
  • Defamation risk is higher where the topic is a person. If online posts criticise or allege misconduct about an individual, be careful about getting involved.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.