Be careful what you post - A misplaced emoji can land you in hot water and get you sued.

The District Court of New South Wales has recently confirmed that an emoji can give rise to a defamation claim.

In Burrows v Houda [2020] NSWDC 485 the court was asked in a preliminary hearing to consider whether the use of the zipper-mouth face emoji might be considered defamatory. The emoji in question was used by the defendant lawyer in reply to a tweet by a third-party Twitter user enquiring about the outcome of disciplinary action involving the claimant lawyer. 

The claimant contended that both this tweet in 2020, and a previous tweet in 2019 referring to an article in the Sydney Morning Herald about the claimant’s conduct, conveyed the false and defamatory meaning that she “so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action”, and was in fact the subject of professional sanctions. The defendant’s position was that the emoji simply meant that he could not reply.

The Judge, Her Honour Judge Gibson, did not agree. She stated that “As is sometimes the case with social media posts, the meanings may be gleaned from pictures as well as words, and where liability for publication arises from more than one post, from the dialogue which ensues”. 

Whilst this is the first time a court in Australia has been asked to decide the issue, it did not consider expert evidence necessary as there have already been rulings on the meaning of emoji in other areas of law. In particular, reference was made to the reasoning adopted by Mr Justice Tugendhat in 2013 in Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB). 

In this case, the words “innocent face”, which were used in a tweet following a question about why the plaintiff was “trending” on Twitter, were held to be capable of conveying a defamatory meaning. The basis for the decision was that the words were considered to be akin “to a stage direction or an emoticon (a type of symbol commonly used in a text message or email). Readers are to imagine that they can see the Defendant’s face as she asks the question in the Tweet”.

In Burrows v Houda Gibson DCJ accepted that “In the fast-moving world of online communication, emoji have largely replaced emoticons. Their ability to convey a set meaning is clear…They are extensively used as a form of hieroglyph for meanings and as such are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary.” 

After the judgment in 2013, Bercow said that the "ruling should be seen as a warning to all social media users." Her comment has just as much relevance today as social media use is even more widespread.

What is key is the context and specific circumstances in which emojis are used. In the earlier case Mr Justice Tugendhat held that the circumstances were such that “the reasonable reader would understand the words “innocent face” as being insincere and ironical”. In the more recent case Gibson DCJ was satisfied an “ordinary reasonable social media reader” would make adverse assumptions about the plaintiff.

Both cases are a useful reminder that a claim for libel can be brought if emojis and/or innuendo wording are used which convey a defamatory meaning and their publication has caused or is likely to cause serious harm to the reputation of the claimant. It is, therefore, important to think very carefully about what you say and how emojis are used in messages or on social media. 

David Cameron’s LOL sign off to Rebekah Brookes, which he thought meant “lots of love” shows that people can get social media posts wrong. However, claiming ignorance as to the meaning of an emoji or certain wording is unlikely to succeed if the circumstances show that the reasonable reader would understand a different meaning.

If you have concerns about a post on social media or a message about you, which is sent to a third party, then it worth thinking carefully before you post. Remember an emoji is like a picture, it can paint a thousand words – and not all of them you may like.