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You may want to think twice before using that emoji…

Defamation is a funny little area of the law and in the past, cases have been run because of information published in newspapers, blogs and television programs. As the online world grows and the ways information is conveyed continues to expand, new types of communication is being considered by the courts in this context . Who would have thought that an emoji would be one of the central topics for debate in a defamation case? Well, in Burrows v Houda [2020] NSWDC 485, this is exactly what happened. The offending emoji was this guy:

What was the issue?

Lawyer Adam Houda tweeted a link to an online article in relation to lawyer Zali Burrows. The article focused on a judges' comments made about Burrows' competence as a lawyer. Houda used the 'zipper-mouth' emoji in response to a comment on his tweet.

Burrows contested that the use of this emoji, along with the publishing of the link, conveyed the imputation that she was guilty of misconduct and unfit for her job.

So, what did the Court do?

The Court used the Emojipedia dictionary to determine the meaning of that particular emoji. Yes, you heard that right! The Court found that this emoji has two meanings:

- The person has 'a secret' that they 'will keep'; and

- The person is telling someone to 'zip it!'.

Despite the multiple meanings, the Court found that Houda's reply was defamatory. A single-digit emoji graphic was capable of conveying the alleged imputation to an ordinary reader of the tweet.

What can we learn from this case?

Does this mean a Liam Hemsworth fan should refrain from using the 'love-heart eyes' emoji on his latest Instagram post? Or a sports-fanatic should refrain from using the 'lighting' emoji on Ronaldo's post as it may convey that he is destructive and violent? Well, if you are unsure of the meaning of an emoji, it is a smart idea not to use it or you could find yourself in a defamation case! Before posting on social media, ask yourself: will an ordinary reader of this post be able to understand a potentially defamatory imputation? If so, refrain from posting. This also applies to comments and replies. A comment on a post is considered published material. That click of a button from the comfort of your bedroom could send you straight to Court if you are not careful enough.

Might not be such a bad idea to carry a hard-copy Emoji dictionary after all!


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