Can an emoji be defamatory? The case of Burrows v Houda

• Emojis – and its predecessor, the emoticon – have changed the way in which we communicate, and enable users to emote on a digital platform.
• In Burrows v Houda [2020] NSWDC 485, the District Court of New South Wales in Australia was called on to determine whether an emoji is reasonably capable of conveying a defamatory meaning.
• The judgment provides useful guidance to other courts, including for South Africa, in determining how to interpret and ascribe meaning to an emoji under defamation law.

Emojis as a form of expression

Emojis – and its predecessor, the emoticon – have changed the way in which we communicate. Through emojis, we are able to convey a range of emotions, attenuate the tone of a message, and add nuances to communications that may otherwise be lost by the text. As social media becomes a central part of our daily lives, emojis are a way of emoting on a digital platform.

The Oxford English Dictionary defines an emoji as a “small digital image or icon used to express an idea, emotion, etc, in electronic communications”. While emojis are a relatively recent development to speech and expression, they remain a relevant form nevertheless. As is sometimes the case with social media posts, the meanings may be gleaned from both the pictures and the words, as well as the dialogue which ensues. This has been confirmed in a recent decision of the District Court of New South Wales in Australia, which held that at an emoji is reasonably capable of conveying a defamatory meaning.

Burrows v Houda

In Burrows v Houda [2020] NSWDC 485, the plaintiff instituted proceeding for defamation for the publication of two tweets by the defendant:

• The first tweet by the defendant, dated 29 July 2019, read as follows: “Judge recommends Salim Mehajer’s lawyer be referred for possible disciplinary action.” The tweet further included a link to an article about the plaintiff. The first tweet can be downloaded here.
• The second tweet by the defendant, dated 27 May 2020, 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.” The second tweet can be downloaded here.
• In response to a question about what had happened to the plaintiff since the defendant replied with a zipper-faced emoji. Others also responded to the defendant’s tweet, including with emojis depicting a clock, a collision, a ghost and a crying-faced emoji.

The key question before the court was whether the tweets, particularly the emojis, were capable of the imputations that had been pleaded. Specifically, the plaintiff argued that the tweets conveyed that the plaintiff was facing a potential legal battle after a judge made scathing remarks about her competency; that the plaintiff misconducted herself during a court case; and that the plaintiff was a criminal.

Determining the meaning of an emoji

There are a number of key findings of the court that are of particular relevance:

• Reliance on online dictionaries: The first relates to the need for courts to consult appropriate sources, including online dictionaries. The court noted in this regard that while there had been some academic criticism of judges referring to sources such as Wikipedia, “the nature of modern communications makes consultation of internet dictionaries, such as Emojipedia, a necessary step for the trier of fact who seeks to determine that the ordinary reasonable Twitter reader would make of the use of these symbols”.
• The ordinary reasonable reader: The question to be asked is how the ordinary reasonable reader would interpret the tweets. According to the court, readers are to imagine that they can see the defendant’s face as he or she makes the statement in question. The court noted further that the ordinary reasonable reader of tweets derives the meaning of the imputation from the tweet itself and the circumstances surrounding the tweet.
• No expert evidence required: The court held that it was appropriate for a judge to determine a meaning based on an emoji without the benefit of expert evidence. In the present matter, the court noted that the parties had not suggested this step, and it would not be appropriate for this to be imposed on them by the court.
•  The seriousness of the meaning: One of the key considerations before the court was whether an emoji can convey a serious meaning, or whether it is simply an illustration with no real meaning. Here, the court took the view that the use of an emoji does not reduce the seriousness of the allegation made.
• Broad impression: The court turned next to consider the meanings of the particular emojis used. For example, the zipper-faced emoji was found to mean “a secret” or “stop talking”, in circumstances where a person impliedly knew the answer but was forbidden or reluctant to answer. With reference to the clock emoji, coupled with the words “tick-tock”, the court found this to imply that the clock was ticking for the plaintiff. Notably, the court explained that while regard had been had to the definitions contained in Emojipedia, this had not been construed in any strict sense; rather, the meanings conveyed by the publications were a matter of broad impression.

Emojis capable of conveying a defamatory meaning

In sum, therefore, the court held that the imputations pleaded were reasonably capable of being conveyed. In other words, the emojis were held to be capable of conveying a defamatory meaning. As noted in the judgment, this was the first time that a court in Australia has been asked to rule on the capacity of an emoji to convey a defamatory meaning, which made it a topic that the court needed to approach with some care.

There does not appear to have yet been a case in South Africa dealing with defamation in the context of emojis. However, as emojis increasingly become part of everyday parlance, it is likely only a matter of time before this arises. In South Africa, our courts have already determined that, when dealing with defamation on social media, regard must be had to the ordinary reasonable social media user.

This will therefore similarly require an enquiry into how the ordinary reasonable social media user would understand and interpret the meaning of an emoji. Following the judgment in Burrows, courts should avoid seeking to ascribe a strict meaning to an emoji. Rather, courts should be guided by the broad range of relevant factors, including the common usage of the emoji, whether it is intended sincerely or sarcastically, the intention behind its use and the context in which it appears.

Avani Singh is a director and co-founder of ALT Advisory and Power Singh Inc. Avani writes in her personal capacity.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].