Think emojis don’t count when it comes to defamatory comments online? Think again!

Recently the District Court of New South Wales determined that an emoji could convey a defamatory meaning. In the case of Burrows v Houda [2020] NSWDC 485, proceedings were brought by Zali Burrows against Adam Houda in relation to posts made on Twitter in July 2019 and May 2020.

Ms Burrows made the claim that words and images in the tweets gave rise to defamatory imputations. One of Mr Houda’s tweets linked to an article in the Herald which reported a judge’s suggestion that Ms Burrows’ conduct be referred to the Law Society for potential disciplinary action, which received a number of replies. One of these replies stated “July 2019 story. But what happened to her since?” Mr Houda responded with a ‘zipper-mouth face’ emoji. 🤐

Ms Burrows asserted that the tweet conveyed a range of false and defamatory claims, including that she had been disciplined due to misconduct.

In determining the matter, her Honour Justice Gibson confirmed 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.”

Justice Gibson referred to the online dictionary Emojipedia and said that the zipper-mouth emoji means ‘a secret’ or ‘stop talking’ “in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer.” In the context of Mr Houda’s other tweets, the implication of the emoji that Ms Burrows had acted improperly was pretty clear.

Her Honour noted that “the ordinary reasonable reader of tweets derives the meaning of the imputation from the circumstances surrounding the tweet,” and was satisfied that most social media users would make adverse assumptions about Ms Burrows given that the tweets were accompanied by an article that had the effect that Ms Burrows had acted unsatisfactorily.

This decision is especially notable, not only as it set a precedent that an emoji alone can be defamatory, but also because it is the first instance where an Australian Court has considered an emoji in written communications. Given the increasing use of emojis in day-to-day life, it certainly won’t be the last.

The Burrows matter is a well-timed reminder to pause and consider before posting comments that could be construed as being defamatory on social media, even when comments are limited to an emoji.  

If you believe you have been subject to defamatory comments, with or without emojis 😆, the experienced team at Enterprise Legal can help you to weigh up your options.

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It’s not exactly news that it’s important to be careful when posting on social media, especially when it comes to posting about other people or other businesses. It is, however, news that posting defamatory posts and comments on social media could cost individuals big time.

In the decision of Webster v Brewer (No 3) [2020] FCA 1343, the Federal Court of Australia awarded $875,000 in favour of Nationals Member for Parliament Dr Anne Webster, her husband, and their not-for-profit organisation as a result of defamatory materials posted online by Karen Brewer. Ms  Brewer posted a series of ‘vile’ and ‘heinous’ Facebook posts that linked Dr Webster to a secret criminal network of child abusers.

The Court considered the extent of the publication of the posts to be significant. The videos posted by Ms Brewer exceeded 1,000 views, and the published posts received more than 200 reactions, comments and shares. Given the population of Mildura is 54,000, the Court was left with little doubt that the posts had been widely published and were likely to have spread further throughout the local community.

It was determined by the court that the posts had a detrimental impact on the reputations of the Websters and Zoe Support and that the posts and videos had likely “been believed by a small but not insignificant segment of the Mildura community.”

Key Takeaways

In making the determination, Justice Gleeson noted that:

• the Court must consider the ‘grapevine effect’ and acknowledge that defamatory claims and materials can spread beyond the people to whom the materials are published;
• damages ought to be significant enough to convince an observer that the defamatory allegations are not true;
• damages must compensate for injured feelings, loss of self-esteem, and sense of indignity, particularly in circumstances where defamatory claims are particularly ‘vile’ and where a plaintiff has a particular reputation based on honesty and integrity;
• defamatory statements cannot be made about public figures solely because they are in the public sphere;
• the repetitive posting of the defamatory content was particularly relevant; and
• in circumstances such as this where the defamatory claims were particularly ‘vile’ or ‘heinous’, it could not be claimed that conduct was justifiable as a defence.

While it may go without saying that it is important not to post materials that are so obviously defamatory, Webster v Brewer (No 3) should serve as yet another warning to be careful before posting on social media. This case makes it clear that the Courts will award significant damages for serious, repetitive, and wholly baseless posts and comments that may damage another person’s reputation.

If you are seeking trusted legal regarding online defamation; talk to the Enterprise Legal Disputes team:

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