Zipper-mouth face emoji worth a thousand words

September 17, 2020 Roger Blow

The NSW District Court has found that the ‘zipper-mouth face’ emoji used in a tweet was capable of conveying a defamatory meaning.

In the preliminary hearing of defamation proceedings involving two Sydney lawyers (Burrows v Houda) where the subject matter of the relevant publications involved the manner in which evidence had been prepared by the Plaintiff lawyer, the court determined the Defendant’s tweeted zipper-mouth face emoji, when responding to the question “but what happened to her since?”, could be capable of making adverse assumptions about the Plaintiff’s conduct as a lawyer.

The court considered that the zipper-mouth emoji meant ‘secret’ or ‘stop talking’, which indicated that a person impliedly knew the answer (which reflected negatively for the Plaintiff) but was forbidden or reluctant to answer. Lawyers for the Plaintiff argued that this zipper mouth face was ‘worth a thousand words’. It will be up to the Defendant to argue that it does not.

As is sometimes the case with social media posts, meanings may be gleaned from pictures as well as words and where liability for publications arise from more than one post, from the dialogue which follows. This Australian decision forms part of a line of legal authority from around the World where long standing defamation law concepts have been applied to modern day social media behaviour. A similar example from a prior European Court decision imposed liability where a defendant ‘liked’ another’s Facebook post and was held to have endorsed (and therefore re-published) its content.

It is important therefore that all social media users take care when it comes to posting online as the Courts continue to take an increasingly broad (and we would suggest contemporary) approach to interpreting meanings from online publications. This is not ‘new law’ as cartoons for example have featured in defamation (and similar) actions for as long as those laws have existed. The application of such principles to the modern phenomenon of the humble emoji is new – and who knows could even encourage the Judiciary to begin to express their own views on submissions and proposed orders though the same medium. We suspect the ‘rolling eyes’ emoji might feature widely in that context…

Cove Legal specialise in resolving legal disputes with particular expertise in bringing and defending defamation claims. Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media. He regularly provides commentary concerning media law issues to television, radio stations and newspapers.

Damages to lawyer for defamatory online reviews

June 4, 2020 Roger Blow

A recent judgment of the South Australian Supreme Court (Cheng v Lok [2020] SASC 14) has awarded a lawyer $750,000 in damages for a defamatory review posted on Google My Business.

The reviewer, Ms Lok, posted an extensive negative review of Mr Cheng, alleging that he was unprofessional, and provided false and misleading advice to his clients. Mr Cheng argued that the review caused him to lose around 80% of his clients and irreparably damaged his reputation and his business.

The court heard that not only had Mr Cheng never been retained as Ms Lok’s lawyer, the pair had never met. When Mr Cheng contacted Ms Lok to remove the review, her response was to change her alias name and post further, similar reviews.

“The only conclusion that can be drawn is that her intention was to destroy the plaintiff’s livelihood, and cause him distress, anxiety and financial hardship.”

This case reaffirms the courts’ willingness to protect victims of false or defamatory online reviews. The impact caused to the Plaintiff’s business also highlights the substantial financial damage that can be caused to a business from negative content being published online. Bringing genuine legal accountability into the online forum is an area into which Cove Legal has invested significant sector focus.

Cove Legal specialises in resolving legal disputes with particular expertise in bringing and defending defamation claims. Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media. If you are facing damage to your reputation or business due to unfounded online reviews, then contact us today to see how we can help you.

Roger Blow, Practice Director P: +61 8 6381 0326 or e: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

COVID-19: A Financial Health Perspective

March 17, 2020 Roger Blow

These are clearly concerning times from a global health perspective and entire nations are facing, in many cases for the first time in over half a decade, a genuine risk to the lives of their immediate family and close friends.

We are all receiving detailed advice and information many times a day about slowing or avoiding the spread of the virus. Indeed we risk missing the most important guidance by having to wade through so many updates and briefings on what we should and shouldn’t be doing!

But in addition to the obvious need to protect the health of our own families and the community as a whole, there is also a need to have at least some regard for other realities which, whilst not the current priority or focus, are still going to be relevant when we emerge from this crisis: jobs, income, tax liabilities, cash flow, finance, insurance, insolvency.

All of the information and signs suggest that this will be a long battle and not something that is a mere memory come Easter. The initial medical predictions put the peak of WA’s coronavirus attack most likely falling between June and August.

So as hard as it may be when every update is focused on social distancing and using antibac gel, we do also need at this time to start thinking about how we make or change plans to address the financial needs of our businesses and community. Already some industries would have been severely impacted financially by the virus measures, such as those in the events and sport sectors. Next in line will be restaurants and bars and then businesses selling luxury items or social experiences, given that belts will be tightened probably even more so than in the GFC. And we are only weeks into this story, with likely months still to go.

At Cove Legal we have specialized for many years in assisting clients with legal disputes or problems focused around either insolvency issues or outstanding tax liabilities. The advice in that space, virus or no virus, is to have the conversations early – especially where the ATO is concerned. So many damaging financial outcomes can be either avoided or lessened with early advice, action and intervention when things start to look financially uncomfortable.

We provide guidance on potential personal liability for Directors, dealing with the ATO when an individual or company is being pursued for unpaid tax debts, negotiating payment plans for tax debts, addressing garnishee notices, director penalty notices, winding up or bankruptcy proceedings and pursuing unpaid amounts under commercial agreements.

The next 3-6 months are going to be challenging for businesses both big and small and this will likely be a global economic problem. We can’t give you more advice on the health issues but if you would like to discuss a legal health check for your business then we are keen to remain as available as possible to clients.

To assist in that objective, we are now set up to conduct client meetings by either Skype or iPhone Facetime – and the old-fashioned telephone and email of course work very well.

We are also happy to offer fixed price initial consultations at $350 plus GST for up to an hour (which represents over 40% reduction to the usual fees), so that new clients can feel comfortable that they are not handing over a blank cheque. Our objective is to give you the best advice for you to then make informed decisions. Call or email us today if you think we can help.

Roger Blow P: +61 8 6381 0326 or e: roger@covelegal.com.au

Text messages to one person still found to be defamatory

March 5, 2020 Roger Blow

The recent decision of Armstrong v McIntosh [No4] 2020 WASC 31 has found that text messages referring to the plaintiff as being ‘an evil person’ were defamatory, despite being sent to only one person.

The plaintiff claimed that the text messages, sent by the defendant to his friend, were defamatory and he sought damages, including aggravated damages, as well as an injunction to restrain the defendant from making any further publications with the same defamatory meanings.

The defendant made the allegations over a series of text messages implying that the plaintiff was evil, a liar, that he had acted in such an unchristian way that his parish priest thought ill of him, that he didn’t deserve to associate with the defendant’s family and friends and that he conspired with other people to ruin the defendant by nefarious means.

It was interesting that in assessing damages, the court considered that the means of publication was a factor. Despite text messages often being informal and spontaneous in nature, the defendant in this instance wrote long, well structured, grammatically correct messages, which would be perceived by the ordinary person as being something that was expressly considered by the defendant and not an offhand remark as he had argued they were.

The court also found that whilst the gravity of the material in the texts was serious it should be weighed up against the fact that the texts were only published to one person. For this reason there was ‘minimal damage’ to the plaintiff’s reputation and that there needed to be an ‘appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.’

The plaintiff was awarded just $6,500 in damages and aggravated compensatory damages of $1,500. The court also awarded an injunction restraining the defendant from publishing the words complained of or any similar words defamatory of the plaintiff.

This decision shows that the publication of sms messages, even to just one person, can be found to be defamatory and caution should always be taken before pressing send. For us however, the decision also provides an excellent example of a plaintiff winning their defamation action and yet being awarded damages by the Court that would no doubt have been dwarfed by the legal fees that they would have spent in pursuing the action and still considerably less than the legal fees that they will likely recover from the defendant. In pure commercial terms therefore, likely a Pyrrhic victory.

Cove Legal specialises in resolving legal disputes with particular expertise in bringing and defending defamation claims. Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media. He regularly provides commentary concerning media law issues to television, radio stations and newspapers.

Roger Blow, Practice Director, P: +61 8 6381 0326 or e: roger@covelegal.com.au