When an emoji gets you into trouble

In the high-profile District Court case of Burrows v Houda [2020] NSWDC 485, the Court was asked to consider the meaning of the “zipper-mouth face” emoji on twitter. The case involved a twitter thread discussing the Plaintiff’s alleged misconduct as a lawyer.

An “emoji” consists of pictographs of faces, objects and symbols that are often used in social media platforms.

The Plaintiff, Ms Zali Burrows, claimed that the imputation from a zipper-mouth face emoji posted by the defendant, Mr Adam Houda, on his twitter feed in response to another user’s tweet was defamatory.

The words and images complained of were pleaded by Ms Burrows as giving rise to the following imputations:

  • The plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a lawyer;
  • The plaintiff so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action; and
  • The plaintiff is a criminal who signs false affidavits.

The Court had to consider in the context of defamation proceedings whether an emoji symbol of a face expressing an emotion conveys a serious meaning or if an emoji illustration has no real meaning. Is an emoji capable of conveying an imputation of serious misconduct?

In May 2020, the defendant tweeted a link to a Sydney Morning Herald story published in July 2019 where Judge Wilson recommended Ms Burrows’ clients be banned for life by ASIC and prosecuted for signing affidavits, they knew to be false.  A third-party twitter user then posted in response to the Defendant’s link: “July 2019 story. But what happened to her since?” to which the Defendant replied with the emoji commonly referred to as “zipper-mouth face”.

The plaintiff’s counsel successfully argued that the ‘zipper-mouth face’ is worth a thousand words and implies that there has been a finding damaging the plaintiff, the defendant knows about it and is not at liberty to disclose the results and can only hint at it by posting the emoji so the reader can guess the rest. The emoji together with the Defendant re-posting an article that is one year old is a case where ‘joining the dots’ is a likely exercise for social media users on a social media site.

The defendant was required to pay the Plaintiff’s cost of the application.

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