This case involves a Twitter thread discussing the alleged misconduct of the plaintiff as a lawyer. I'm still looking for the original thread (some or all of which appear to be deleted due to my attempts to find it on Twitter) or for an exact copy. Based on my reading of the court's description, the thread started with tweets reporting a judge's criticism of the plaintiff's judicial handling of a matter and the suggestion that the plaintiff would be subject to disciplinary action.
A third responded to (one of?) Those earlier tweets: “July 2019 story. But what has happened to her since then? "
The defendant responded with the zipper emoji (🤐).
A third responded, "Judge Wilson recommended Ms. Burrow's clients, banned from ASIC for life and prosecuted for signing affidavits that they knew were false," including "document stubs" (apparently links to outside articles? ), Hashtags and the words "tick-tock" followed by a clock emoji (maybe 🕒?)
A third retweeted the defendant's zip emoji and added the emojis "collision", "tears of joy" and "ghost" (💥😭👻). The court's rendering of the ghost emoji looks different from what I'm depicting because one arm is raised.
A third retweeted one of the previous posts (not specifying which one) with comments and said: "Ohmigod bro !!!!!"
Dishes that interpret emojis
Citing the Oxford English Dictionary, the court defines an emoji as "a small digital image or symbol used to express an idea, emotion, etc. in electronic communication." A number of US courts have adopted or adopted this definition a practically identical one.
The statement said: “This appears to be the first time a court in Australia has been asked to rule on an emoji's ability to convey defamatory meaning. So I should approach this topic with some care. ”👏👏👏
The court discusses the process of interpreting emojis:
- Consultation of online sources is appropriate: “The nature of modern communication makes consultation of Internet dictionaries such as Emojipedia a necessary step in the Trier of Facts that wants to find out what the normal sane Twitter reader would like to see from the use of these symbols citing Emojipedia, the court found the following definitions:
- Zippered Mouth: "A secret" or "stop talking" when a person implicitly knows the answer but is forbidden or reluctant to answer. "Dictionary.com has a similar definition.
- Clock (which according to the court “does not have to be reproduced”): In combination with the text “Tick tock”, the clock emoji implies “that the clock is ticking for someone”.
- Collision: "Often used to represent something, it's excellent or exciting in some way." (In this context, I think the textual equivalent could have been something like "BAM!").
- The court doesn't define "tears of joy" I think because the emoji is so popular that everyone knows what it means.
- Ghost: "indicating something funny or silly … arms raised made it" an excited yay! "Indicates. Note that Dictionary.com defines the ghost emoji and its definitions are completely different. To me, the ghost in context could mean that law enforcement agencies have" ghosted "the public by failing to disclose the result of a disciplinary action or that they haunt the public by taking too long to pursue the matter.
- The court asks, "Is it appropriate for a judge to determine a meaning based on an emoji without the benefit of expert evidence or input from the jury?" The court concludes that this is not necessary here: “In other areas of the law, decisions about the meaning of emoji have already been made without this being necessary. In addition, there have been decisions about liability for posting and / or defamatory meanings for other non-verbal internet tools, such as the use of the like button and the use of hashtags. "As I mentioned earlier, courts are unlikely to rely on linguistics or communication experts to interpret emojis, although they sometimes rely on experts familiar with community slang to understand the community-specific meanings of Emojis (like the meaning of the crown emoji in to reveal the sex trafficking community).
Since this conversation took place on Twitter, the court only shows the Twitter emoji representations. The court does not go into whether people reading Twitter on their mobile devices could have seen different emoji representations that have been replaced by their device's operating system. For example, emoji sets differ significantly in how they depict the arms of the mind. Since the raising of the arm is central to the court's interpretation of the ghost emoji, a different representation (if any) should affect the definition ascribed by the court.
Does a zippered emoji slander the plaintiff?
The central question of the opinion is whether the defendant's laconic zip-and-mouth emoji is a defamatory statement in response to a request to update the disciplinary process. The court says it could:
39. Mr Rasmussen (the plaintiff's attorney) argues that this "zipped face" says more than a thousand words – the emoji implies that there is something harmful to the plaintiff, but the defendant is not free to disclose the result. and must instead point it out by publishing the newspaper story from the previous year and using the "zipper-mouth face" so the reader can guess the rest.
40.… Mr. Rasmussen contends that this Delphic Reaction is tantamount to screaming "fire" in a crowded theater (sorry to Mike Masnick and anyone who knows the analogy of fire in a crowded theater is garbage), which is the occasion has a defamatory meaning which is further inflamed by the three following comments.
41. In connection with the defendant's reply, the "zipped-mouthed face" takes up both aspects of the investigation – the fact that the defendant publishes an article almost a year old and the outcome of what happened to the stub. This is a case where "connecting the dots" (Joukhador v Network Ten Pty Limited (2020) FCA 746 at (43)) to achieve the meaning is a particularly likely exercise when on social media -Site is carried out where the exchange of such information contains notices of a sensational nature rather than a reputable publication.
42. In all these circumstances, the alleged credit that the applicant was the subject not only of a transfer but also of an outcome that was unfavorable to it is reasonably transferrable.
The verdict therefore concludes that the zipper emoji has the ability to be defamatory. The plaintiff has the opportunity to advance this argument. This does not mean that the zippered mouth emoji reaction was actually defamatory. In fact, I can think of many ways the zipper emoji had a non-defamatory meaning. For example, if the defendant didn't have inside information about the status of the disciplinary process and his readers knew this, the zip would be an ironic use to project onto the people inside who know something but don't know. I'm not talking about it. It could also mean that the accused has literally inside knowledge but is legally prevented from thinking about whether developments are good or bad. In a later proceeding in this case, the defendant can demonstrate that the use can be one of the other non-defamatory meanings.
Other defamatory statements
For reasons that are unclear to me, the court is talking about other statements on the thread. Is this because, under Australian law, a Twitter user can be held liable for defamation by other Twitter users? Or is the court trying to pick up several defamatory statements, all of which have been confirmed through the use of the zipped mouth emoji? I can not say it.
Regarding the allegation that the plaintiff's clients mistakenly signed an affidavit, the court states:
45. I am satisfied that the common sane social media reader would conclude that the plaintiff, who was a lawyer who was reported to be in trouble with the judge, would also have reasonably been viewed as such, while clients "signed" the false affidavits in trouble because of their role in preparing the affidavits and / or submitting them to court. This is underlined by the words "tick tock" and the use of the "three o'clock" emoji, which suggest that the applicant's time (in relation to the treatment of her wrongdoing) has expired.
46. The third and fourth posts (the collision / tears of joy / ghost tweet and the Ohmigod tweet) add more emoji and comment on the defendant's post if they retweet him. They affirm that the plaintiff's conduct is extremely serious and subject to professional sanctions.
The par. The discussion is particularly interesting as the court uses third-party emoji responses to gauge how others were interpreting the conversation at the same time. In this sense, the emojis act as outward evidence of the meaning of the previous statements. The defendant should be able to provide other non-defamatory explanations for the crowd's reactions. Therefore, the court ruled again only that one of the possibly multiple meanings had the ability to defame.
Overall, I think the judge did a good job assessing the meaning of emoji. She only relied on her intuition and emojipedia and not on expert advice. (Apparently she has a longstanding interest in social media.) The zipped mouth emoji has many possible meanings, but the judge identified one non-frivolous meaning that could be defamatory. The meanings ascribed to the other emojis are also believable.
In a US court, some judges would have dismissed the defamation case if the plaintiff had not provided more evidence that the defamatory meaning was likely and not only possible. I'm not sure what Australian pleading standards are required of a defamation plaintiff. In a California court, it is possible / likely that the lawsuit was put down under CA's strict anti-SLAPP law because the parties appeared to be discussing a matter of public interest (attorney's discipline was alleged to be grave misconduct in court). and the plaintiff would have needed better evidence to overcome the load shift required by CA's anti-SLAPP law. Just a reminder that anti-SLAPP laws have many advantages and we still need a federal anti-SLAPP law.
This case reminds us of the ever-present dangers to which we face as legal commentators reporting or discussing the activities of plaintiffs or their lawyers. By definition, they have been shown to have sued people, so they have a higher than average risk of opting for a lawsuit against you. The relatively mundane Twitter chatter about an attorney's disciplinary process certainly seemed harmless enough at the time, but I've been threatened with defamation lawsuits based on far less. It's all fun and games on Twitter until someone gets sued. Think before you tweet.
After all, this case implicitly answers the question of whether you can be sued for using emojis. It has always been clear that the answer is yes, but this case brings that answer to sharp relief. A single emoji, with nothing left, served as the ground for a defamation lawsuit that apparently survived a dismissal request. The defendant will spend a fair amount of money defending his use of a single emoji. I love emojis, and I encourage you to keep using them – but remember, you own your words and so do your emojis.
Case Quote: Burrows v Houda (2020) NSWDC 485 (Aug 25, 2020)