Zipper-mouth face emoji worth a thousand words

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.   

Hospital uses ‘indefensible’ legal practices

Australia’s largest hospital service, Metro North Hospital and Health Service, has been embroiled in claims of nepotism, corruption and ‘indefensible’ legal practices.


In 2018 four psychiatrists employed by Metro North commenced defamation proceedings against an ex-patient who had claimed in a blog post that she had been held unlawfully in a mental health facility. The psychiatrists sued the patient claiming $700,000 in damages plus interest and legal costs but surprisingly the legal costs for the proceedings were billed to Metro North, with taxpayers therefore ultimately picking up the tab.


A Metro North lawyer turned whistle blower stated that not only was it against an internal legal unit policy that patients not be pursued for defamation, it also raised concerns about the use of public funds to pursue essentially private litigation. He revealed that Metro North had developed a culture of aggressive litigation and cover-ups to avoid responsibility and attack people who challenged them.


In separate proceedings, Metro North was found by the Queensland Civil Administrative Tribunal to have unlawfully discriminated against a person by denying him a job because of his political activity.

Despite their obligations as a model litigant, Metro North persisted in ‘defending the indefensible’, even trying it was reported to bully the person into dropping their claim. This litigation was estimated to have cost taxpayers $2 million in damages and an estimated $500,000 in legal fees.


The medical and legal professions have long operated in close proximity to each other and case reports such as these bring into sharp focus the need for appropriate legal strategy and adherence to model litigant obligations where legal claims and rights are at stake that concern Government Departments or publicly funded regulatory bodies.


We have previously discussed the obligations of model litigants and how they ought to behave before, during and after litigation.


Cove Legal specialises in a wide range of commercial litigation and regularly assists its clients in responding to allegations made against them by government or regulatory bodies. In particular, Cove Legal has special expertise in assisting clients in the health sector. If you are facing actual or potential action from a government or regulatory body then contact us today.


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.

Injurious Falsehood and Defamation – A Useful Distinction?

Several high-profile defamation cases have recently been heard in Australian courts, but what separates ‘defamation’ from another legal term which is also increasingly being used in reputation disputes – ‘injurious falsehood’?

Defamation refers to false statements which damage a person’s reputation, whereas injurious falsehood refers to false statements which detrimentally affect a person’s or a business’ ability to sell goods or services.

The elements of a claim in injurious falsehood have been summarised by the Courts as:

1.      There must have been a false statement regarding the Plaintiff’s business (either written or verbal);

2.      The statement must have been publicised to a third party;

3.      The statement must be made with malicious intent; and

4.      The statement directly caused the Plaintiff actual loss.

Injurious falsehood concerns statements which, without necessarily having a detrimental effect upon a person’s reputation or causing them embarrassment, nevertheless have a negative economic impact.

Whilst the burden of proof under injurious falsehood requires the Plaintiff to prove an imputation to be false (which is not a requirement in a defamation action), the strategic benefit of running such an argument instead of or alongside a defamation claim is that it can provide an opportunity to seek injunctive relief.

Note though that the Courts have demonstrated limited patience where such an argument is utilised as ‘a transparent device to obtain a permanent injunction’ not available under defamation.

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

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.