Written by MBA Lawyers Partner Mitchell Clark

An emoji has the capacity to be defamatory. As decided by Judge Gibson in recent case in the NSW District Court (Burrows v Houda [2020] NSWDC485) involving two Twitter posts in which the Defendant responded with a “Zipper-Mouth” face emoji.

Australia’s first emoji complaint

In an Australian-first, the judge applied a test of a “matter of impression” in adjudicating on the capacity of an emoji to convey defamatory meaning.  The Court has been asked many times previously to consider whether words and phrases are defamatory, and this was the first complaint about an emoji. 

Looking at the particular context of the emoji following an original Tweet, the Judge found could reasonably convey to an ordinary Twitter user that the Defendant was not at liberty to talk about the Plaintiff, leaving the reader to infer that there was something unspoken yet damaging about the Plaintiff.

Reference was made to a 2013 case in the UK where the English Court ruled on the meaning of an “innocent face emoticon”.

Sounds frivolous to be arguing about the meaning of emojis?

Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws in the USA are intended to prevent people from using courts to intimidate people exercising their individual right to free speech. There is nothing equivalent in Australia (except in limited version as part of proposed Human Rights Act). Australia does have the curious system in which the Supreme Court can declare someone a “vexatious litigator” and prohibit them from starting cases without the Court’s permission.

DID YOU KNOW? Australia’s most famous serial litigant was Julian Knight, a mass murderer who killed seven people and injured 19 during a shooting spree in Melbourne in 1987. He was declared a vexatious litigator in 2016 after launching 40 law suits over 10 years! The phenomenon is referred to as “querulous behaviour” in psychiatric literature.

Another controlling measure in our legal system is the power given to Court Registrars to refuse acceptance of litigant documents that are irregular (not in the proper form) or that represent an abuse of process.

With the surge in emoji-use, I don’t think the recent Court decision will be the last.  A possible future legal consideration will be the way that emoji depictions vary between mobile devices.

Best rule remains to think before you use emojis on social platforms.