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.