If one picture contains 1000 words, imagine the power yielded by single emoji. One little icon (often used as poor substitute for grammar) has the ability to change the meaning, tone, and expression of a statement. Whilst often innocent, the case of Burrows v Houda  NSWDC 485 has demonstrated that emojis are capable of carrying defamatory meanings. More broadly, this case reminds us that our screens and social media aliases are not a sufficient shield to protect us from the consequences of our remarks and comments on social media.
How are Emojis ascribed meaning?
In discussing social media posts, the Court regarded meaning as being constructed from pictures, words and dialogue. In Burrows, the plaintiff claimed that the words and emojis used in a thread to article posted on Twitter gave the impression that she was a criminal and had her professional character as a lawyer publicly deplored by a judge.
Whether the statements made in the post were defamatory depended upon the meaning that an ordinary and reasonable Twitter reader would gather from the emojis and the context within which they were used.
In particular “zipper mouth” emoji (🤐) was understood as implying that the writer knew more than what he revealed. This implication was reached by considering the context surrounding the emoji. Namely, that it was made in response to a comment asking what had happened to the plaintiff since the allegations made in the article were released. Having considered the surrounding circumstances, this emoji conveyed to the reasonable reader that the author was aware of some “secret” that he may have been reluctant to share concerning the plaintiff’s guilt. This implication was made at the time where the allegations of professional misconduct remained unconfirmed.
As the thread continued, a “clock face emoji” (⏰) preceding the words “Tick Tock” was interpreted as suggesting that “time is ticking” for the lawyer whose guilt will soon be revealed.
The court held that the emojis were in fact capable of conveying to the ordinary and reasonable Twitter user a presumption of guilt which had not been proven or established. Indeed, it was false and defamatory.
As communication continues to evolve across the internet with the rapid adoption of these modern hieroglyphs, defamation law has now increased its scope to include emojis in its consideration. It is therefore important to be vigilant in your social media presence in order to avoid inadvertently attracting a defamation suit. In mind of this recent court ruling, here are some suggestions on how to ensure safe and productive social media use.
Emoji Code of Conduct:
1. Be careful not to send or post emojis that are ambiguous in meaning. In defamation cases, it is of no importance what you intended to mean or what you thought the emoji meant, but rather what meanings the words and emojis are capable of giving rise to.
2. Be aware of your social media presence and whether the pictures posted, linked articles or comments you leave do not join in a constellation that may transform an innocent comment into a cause of legal action.
3. Do not take advantage of the protection offered behind your screen. If you are making false and defamatory statements, your iPhone may not be a secure method to shield you from legal consequences.
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.