|Name of the Case Burrows v. Houda|
|Citation (2020) NSWDC 485, file no. 2020/213348|
|Year of the Case 2020|
|Appellant Zali Burrows|
|Respondent Adam Houda|
|Bench/Judges DCJ Judith Gibson|
|Acts Involved Uniform Civil Procedure Rules 2005 (“UCPR”) rr 15.19, 28.2|
|Practice Note 6 (District Court Defamation List)|
|Important Sections Uniform Civil Procedure Rules r 28.2, imputations 10(c), (d)|
Emojis or emoticons have changed how we communicate nowadays. We can convey a range of emotions through emojis such as adding nuances to communications, attenuating the tone of a message that may otherwise be lost by the text. As social media becomes a primary part of our daily lives, emojis have also become popular on digital platforms. The Oxford Dictionary defines an emoji as a “small digital icon or image used to express an idea, emotion, etc, in electronic communication.” The meaning of social media posts may be gleaned from both the words and emojis as well as the dialogue which are used in the sentence. This very thing was confirmed in the given case where the District Court of New South Wales in Australia held that an emoji is also reasonably capable of conveying a defamatory meaning.
This is the first decision of its kind in Australia where Judge Gibson contemplated the meaning of the “zipper face” emoji in the context of defamation. This case involves a Twitter exchange discussing the plaintiff’s alleged misconduct as a lawyer. This thread started with the exchange of tweets reporting on a judge’s criticism of the handling of a matter in court by the plaintiff and suggestion that the plaintiff would be subject to disciplinary action. The imputations of series of emojis on twitter were called into question in the court of law as two solicitors argue over the meaning behind the images. Judge Gibson was tasked in translating a series of emoji into the legal language to determine whether solicitor Houda seriously implied that the fellow solicitor Burrows engaged in inappropriate conduct.
Background and Facts of the Case
The first tweet by the defendant was dated 29 July 2019 which read as follows: “Judge recommends Salim Mehajer’s lawyer be referred for possible disciplinary action.” This tweet also included a link to an article about the misconduct of the plaintiff.
The second tweet by the defendant was released on 27 May 2020 which read as follows: “Salim Mehajer’s lawyer facing a potential legal battle of her own after a judge made scathing remarks about her competency as a lawyer.” This second tweet was retweeted several times and on which a person stated “July 2019 story. But what happened to her since?” On this, Mr. Houda replied with a ‘zipper-mouth face’ emoji.
In response to this question about what happened to the plaintiff since the defendant replied with a zipper-faced emoji as stated above, others also responded in the same way to the defendant’s tweet for example emojis depicting a clock, a ghost, a collision, and a crying-faced emoji. Ms. Burrows filed the petition and alleged that Mr. Houda through his tweets implied that she was potentially facing a legal battle after a judge made critical remarks about her incompetency as a lawyer as she misconducted herself during a case and she is a criminal who signs false affidavits. Now, the main question before the court was whether these tweets particularly the emojis used were capable of the imputations and allegations that were pleaded.
Issues Under Consideration
- Whether or not an emoji and specifically “zipper faced” emoji can convey a defamatory meaning?
- Whether or not the emojis are simply illustrations with no real and actual meaning?
Related Concepts and Provisions
Because this case is a very distinct type of case in itself, the court did not take up more legal provisions but relied on various key findings such as:
The Court first relied on trusted and appropriate sources including online dictionaries for the exact and literal meaning of “emoji”. Although there are controversies for consulting internet dictionaries, the court believed that this is a necessary step to determine how an ordinary reasonable Twitter reader could make use of these symbols and emoji.
Ordinary reasonable reader
The primary question on which the case began was how an ordinary reasonable reader would interpret these series of tweets. According to the court, readers can imagine the defendant’s face as he or she makes any tweet or statement using emojis. The court noted further that an ordinary reasonable reader derives the meaning of the imputation from the circumstances surrounding the tweet and from the tweet itself.
Meaning and seriousness of the emoji
The court further considered the meanings of the particular emojis used in the tweets. For example, the zipper-faced emoji that was used was found to mean “a secret” or “stop talking” and these are used in circumstances where a person implies that he knew the answer but was reluctant or forbidden to answer. Concerning the other emojis that were used such as the clock emoji with the words “tick-tock”, the court said that this to imply that the clock was ticking for the plaintiff.
The court also looked upon the fact that whether these emojis convey a serious meaning or not and held the view that the use of an emoji in the statement does not reduce its seriousness of the allegations made.
The court took the legal suggestions from several cases before. The court took the ruling in the case of Bolton v. Stoltenberg where the defamatory meaning of other non-verbal internet tools such as the use of the “like” button was tested. The ruling in the case of AvePoint, Inc. v. Power Tools was also considered where the use of hashtags was tested. The ruling in the case Dow Jones & Co Inc v. Gutnick was also taken to conclude that the meaning based on emoji can be decided without the expert evidence. Also, the case of School for Excellence Pty Ltd v. Trendy Rhino Pty Ltd where the meaning of “angry emoji” and the case of Lord McAlpine of West Green v. Bercow where the meaning of the “innocent face” emoticon was in doubt. Again, the case of Joukhador v. Network Ten Pty Limited  was considered where the “joining the dots” meaning was contemplated is a likely exercise when carried out on a social media site. The cases of Monroe v. Hopkinsand Brose v. Balauskaswas also relied on where the relevant principles and guidelines were laid down for construing social media publications. Rulings of several other cases such as Schenck v. the United States, Sube and another v. News Group Newspapers Ltd and another, Australian News Channel Pty Ltd v. Voller, Trkulja v. Google were taken into consideration.
The court held in its judgment that the imputations that were pleaded were reasonably capable of being conveyed through the sentence overall. In other words, the emojis were held to be fully capable of conveying a defamatory meaning. The “zipper-mouth face” that was used is noted in Emojipedia as explicitly carrying the meaning of “a secret” or “stop talking”, in circumstances where a person impliedly knows the answer but is reluctant to forbidden to answer. Her Honour was satisfied that in the specific circumstances of this case, any “ordinary reasonable social media reader” will make averse assumptions about the Plaintiff. She found that the imputation pleaded was reasonably capable of being conveyed and therefore the plaintiff was allowed to make the desired amendments. Therefore, the court held that the “zipper-mouth” face emoji, and subsequently all emojis in the given case do have the capacity to be defamatory.
Summing up everything it can be said that the issue of the use of emojis will slowly loom in the courtrooms, and courts will be needed to examine their assessment, significance, and intent of these “new-age hieroglyphic-style languages”
Why Are We So Obsessed with These Emojis Nowadays?
Ans: We are so obsessed with these emojis because it is an instant form to validate our sentence or to make people understand our emotions that we want to express.
Are the Use of Emojis Defamatory in Nature in India As Well?
Ans: There has not been any such particular case wherein this exact judgment was given but yes if the sentence along with emoji can be proven as defamatory in the context then it will be considered as a crime.
What is Cyber Defamation?
Ans: The act of intentionally insulting, offending, and defaming any person on online platforms via the internet is known as Cyber Defamation.
Is Cyber Defamation Punishable in India?
Ans: Defamation of every kind is punishable in India whether offline or online. Defamation is both a civil and criminal offense and is punishable in the Indian Penal Code under Section 499.
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 Inc 981 F. Supp. 2d 496
 (2002) 210 CLR 575
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 249 U.S. 47
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  NSWCA 102
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