The NSWDC’s recent decision in Burrows v Houda [2020] (‘Burrows’) is the first time an Australian court has determined the meaning of an emoji in a defamation battle. Burrows sets a precedent confirming courts may find that the use of less conventional forms of communication, such as emojis, may constitute defamation.

 

Defamation battle: The use of the emoji

An emoji was observed in a Twitter post made 27 May 2020 by Houda (a lawyer) who reposted a tweet regarding Burrow’s (also a lawyer) misconduct which had led to Burrow being referred to the law society for disciplinary action. While there was no text in the comment, the mere presence of the “zipper-face” emoji was found to carry serious defamatory imputations. Burrows alleged that Houda’s comment and emoji implied she was facing potential legal proceedings arising from a judge questioning her competency as lawyer.  Among other things, the reposted Twitter article accused Burrows of being a criminal who signed false affidavits.

Judge Gibson stated that the “zipper-mouth” emoji was equivalent in meaning to the phrase “stop talking” or to be used when something is “a secret”. It can thus be inferred its use by Houda was to circumvent the fact that if he was to explicitly comment on the post, it would damage the reputation of Burrows.

The main issue in dispute in Burrows was whether particular emojis can convey defamatory meanings capable of causing significant reputational damage.

 

The decision of the New South Wales District Court

Burrows commenced proceedings on 21 July 2020 for defamation arising from the publication of a Twitter post by Houda, posted on his feed on 27 May 2020.

The NSWDC held that the “zipper-mouth” emoji has the capacity to be defamatory because an “ordinary reasonable social media reader” may make adverse assumptions based on the particular emoji (here being the zipper face).  Accordingly, the imputation that Burrows was a bad lawyer was reasonably capable of being conveyed by the zipper face emoji. Interestingly, the Court in part relied upon Emojipedia, an emoji reference website akin to a dictionary for emojis, to establish the meaning of the emoji.

An important aspect of the decision was the platform where the imputations were conveyed. The post was readily accessible by Twitter users all over the world which gives rise to significant reputational damage, impacting Burrow’s career as a lawyer. Whilst the District Court has not yet assessed damages, it is likely the damages amount will take into account any loss of employment opportunities as well as emotional suffering and embarrassment.

 

Implications for social media users

Burrows is a timely reminder to think before hitting post when making comments via social media. Even something as simple as an emoticon can have wide-reaching imputations giving rise to potential claims of defamation.

If you have been subject to defamatory comments, our experienced Litigation team can provide you with advice about making a claim.