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Be careful what you emoji ⚠️

21 October 2020

The District Court of New South Wales has recently confirmed that an emoji can convey a defamatory meaning.

Her Honour Gibson DCJ 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, this follows the reasoning adopted in the English decision in Lord McAlpine of West Green v Bercow, which was referred to in the judgment.

In the former case, the words “innocent face” were held to be capable of conveying a defamatory meaning as they 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”. The emoji in question in the recent judgment was a “zipper-face” emoji (🤐) which was used in a Tweet in reply to a question asked about the outcome of disciplinary action involving the claimant lawyer.

Louise Prince, senior associate in the Firm’s Reputation Protection, Defamation and Privacy team, said: “This case is a useful reminder that emojis and images are just as powerful as words and just as much care needs to be taken on social media when using them to express your views.

For further information on this issue, you can read Burrows v Houda here.

If you would like further advice on this topic, please contact one of our Defamation, Privacy and Reputation Protection lawyers here.

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