Think emojis don’t count when it comes to defamatory comments online? Think again!
Recently the District Court of New South Wales determined that an emoji could convey a defamatory meaning. In the case of Burrows v Houda  NSWDC 485, proceedings were brought by Zali Burrows against Adam Houda in relation to posts made on Twitter in July 2019 and May 2020.
Ms Burrows made the claim that words and images in the tweets gave rise to defamatory imputations. One of Mr Houda’s tweets linked to an article in the Herald which reported a judge’s suggestion that Ms Burrows’ conduct be referred to the Law Society for potential disciplinary action, which received a number of replies. One of these replies stated “July 2019 story. But what happened to her since?” Mr Houda responded with a ‘zipper-mouth face’ emoji. 🤐
Ms Burrows asserted that the tweet conveyed a range of false and defamatory claims, including that she had been disciplined due to misconduct.
In determining the matter, her Honour Justice Gibson confirmed that:
“As is sometimes the case with social media posts, the meanings may be gleaned from pictures as well as words, and where liability for publication arises from more than one post, from the dialogue which ensues.”
Justice Gibson referred to the online dictionary Emojipedia and said that the zipper-mouth emoji means ‘a secret’ or ‘stop talking’ “in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer.” In the context of Mr Houda’s other tweets, the implication of the emoji that Ms Burrows had acted improperly was pretty clear.
Her Honour noted that “the ordinary reasonable reader of tweets derives the meaning of the imputation from the circumstances surrounding the tweet,” and was satisfied that most social media users would make adverse assumptions about Ms Burrows given that the tweets were accompanied by an article that had the effect that Ms Burrows had acted unsatisfactorily.
This decision is especially notable, not only as it set a precedent that an emoji alone can be defamatory, but also because it is the first instance where an Australian Court has considered an emoji in written communications. Given the increasing use of emojis in day-to-day life, it certainly won’t be the last.
The Burrows matter is a well-timed reminder to pause and consider before posting comments that could be construed as being defamatory on social media, even when comments are limited to an emoji.
If you believe you have been subject to defamatory comments, with or without emojis 😆, the experienced team at Enterprise Legal can help you to weigh up your options.
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