Defamation in the Fifth Industrial Revolution: Can an emoji convey defamatory meaning?
Partner Contribution - SchoemanLaw
With the now fast-paced world in the fifth industrial revolution, the legal sector is at the forefront of current global technological growth which makes for a powerful force to enable sustainable change and high levels of accountability and transparency. It is therefore no surprise that the District of New South Wales, Australia has made an unparalleled finding involving the use of social media’s ‘emoji.’
In 2002, Kirby J made remarks in the case of Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575 which still hold true today in 2020 as they did then. At the time, the whole concept of social media was in its initial phase and Facebook, Twitter and Instagram did not yet exist. Within this time, social media has made strides in a manner which has been unforeseeable, making it easy for defamation as a result of defamatory remarks to be published or accessed in ways which are unprecedented.
Facts of the matter
On 27 August 2020, in what appears to be the first of its kind, Australian judge Gibson J confirmed the unprecedented decision in Burrows v Houda  NSWDC 485, that the use of an emoji is capable of breeding defamatory meanings. In this case, the plaintiff brought defamation proceedings from an exchange on Twitter with the defendant who was her employer. The defendant in response to a question “but what happened to her since?” responded with the ‘zipper-mouth face’ emoji and continued to use other emojis in three other tweets.
The first part of the analysis Gibson J had to make was twofold. Firstly, she had to question whether it was appropriate to determine a meaning based on an emoji without the benefit of expert evidence, jury or input. The court concluded that it was unnecessary in this case because there had already been rulings on the meaning of emoji in other areas of the law without this requirement. It also added that there had been prior rulings made on liability for publication and, or, defamatory meaning for non-verbal internet tools. In light of this, it was unlikely that the court would rely on linguistics or communication experts for the interpretation of emojis. Secondly, she noted that on Emojipedia the zipper-mouth face emoji carried the meaning of a “secret” or to “stop talking” in events where it was implied that the person knew the answer but was reluctant to give it. Furthermore, she accentuated this particular argument on the finding in the case of the School of Excellence Pty Ltd v Trendy Rhino Pty Ltd  VSC 541  where it was confirmed that an emoji has the ability to convey a set meaning. In opposition to her findings, the use of Emojipedia has resulted in the academic criticism of judges (Smyth 2018: 211). However, the nature of modern communication makes it absolutely necessary to consult internet dictionaries such as Emojipedia to determine what the ordinary reasonable person would make of these symbols.
Central to this case is the question of whether the defendant’s zipper-mouth face emoji together with other emojis in corresponding tweets as a reply to a request for updates on disciplinary proceedings constitutes defamation. The following claims were made:
- The “zipper-mouth face” emoji is worth a thousand words and that it implies a finding which may be damaging to the plaintiff but the defendant may not disclose the result and must hint at it by posting the emoji.
- The post which refers to the swearing of false affidavits would infer that a reasonable social media reader would think that the plaintiff signed the false affidavits and would therefore also assume responsibility for the part played in the presentation of the affidavits to the court.
- In cases where the tweets that identify a prosecution as a result of the signing of false affidavits, the reasonable social reader would assume that the plaintiff is also likely to be prosecuted. All these claims were found to constitute defamation.
What does this mean for South African law? South African law authorises its courts to merely consider foreign law in interpreting the Bill of Rights in the Constitution where it states in section 39(1)(c) that a court may consider foreign law. As the use of emoji increases and social media continues to become a dominant form of communication, a case similar to this may make an appearance in South Africa and therefore it is important to prepare for these instances before they occur. Directors, board members and employers in companies should therefore address the use of social media in the workplace and on social media platforms.