28 August 2020

Emojis and Defamation

In Burrows v Houda [2020] NSWDC 485 Gibson DCJ has considered alleged defamation by emoji. 

The judgment states 

The plaintiff’s post received retweets, “likes” and, in particular, a reply which asked: “July 2019 story. But what happened to her since?” 

The defendant’s response is the emoji commonly referred to as “zipper-mouth face”. The defamatory meaning of each of the three challenged imputations in the second matter complained of turns very substantially upon what this “zipper-mouth face” emoji means. 

There is then a second reply, from another third party, which attaches two document stubs and provide the additional information that “Judge Wilson recommended Ms Burrow’s clients be banned for life by ASIC and prosecuted for signing affidavits they knew to be false”, followed by a series of hashtags and links to other Twitter users. This is followed by the words “tick tock” and an emoji showing a clock. 

The third reply uses the “retweet with comment” to republish the defendant tweet, adding three emoji: “collision”, “face with tears of joy” and “ghost”. 

The fourth reply does not resort to the use of emoji, but to English, albeit of a very colloquial nature, by adding the words “Ohmigod bro !!!!!” as a “retweet with comment”. 

This appears to be the first time that a court in Australia has been asked to rule on the capacity of an emoji to convey defamatory meaning, so it is a topic which I should approach with some care. 

Defamatory meaning and emoji 

Although there has been some academic criticism of judges for referring to sources such as Wikipedia (R Smyth, “What do Trial Judges Cite?”, Evidence from the New South Wales District Court" (2018) 41(1) UNSW Law Journal 211, the nature of modern communications makes consultation of internet dictionaries, such as Emojipedia, a necessary step for the trier of fact who seeks to determine what the ordinary reasonable Twitter reader would make of the use of these symbols. 

The relevant principles for construing social media publications are helpfully set out by Warby J in Monroe v Hopkins [2017] EWHC 433 (QB), as summarised in Brose v Balauskas [2020] QDC 15 at [63] – [77]. The correct approach to take to the analysis of symbols such as “zipper-mouth face” is that set out in Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) (“Bercow”), where the court was called upon to determine the meaning of an “innocent face” emoticon. 

Bercow, emoticons and emoji 

One of the main changes to online writing style has been the introduction of two new-age hieroglyphic-style languages: emoticons and emoji. An “emoticon” is a portmanteau term (from “emotional icon”) for pictures made from punctuation marks, letters and numbers to create an image displaying a sentiment and predates the internet as signs (such as :) or ʕ·ᴥ·ʔ) can be created with a keyboard. 

An “emoji” is a more recent invention, consisting of pictographs of faces, objects and symbols; as the name would suggest, the origin of these pictographs is from use in Japan (the jury is still out on whether “emoji” is a collective noun or whether in its plural form it should be anglicised with an “s”; I have taken the former approach). The Oxford English Dictionary provides the following explanation: “Japanese emoji pictograph (1928 or earlier, perhaps after English pictograph n.), small digital image or icon used to express an idea, emotion, etc. in electronic communications (1990s) < e picture (formerly ye ; 8th cent. as we ; < Middle Chinese) + moji letter, character (10th cent.; contraction of mon character, word + ji character, letter (see kanji n.), based on a Middle Chinese compound; compare Chinese wénzì writing). The resemblance in form and meaning to emoticon n. is probably coincidental.” 

This results in the definition: “A small digital image or icon used to express an idea, emotion, etc., in electronic communications.” 

Emoji are used in addition to other meaning-conferring tools, such as hashtags and buttons for “like” or “retweet: (Voller at [85]). 

The emoticon in Bercow consisted of words to portray an “innocent face” following what appeared to be an innocent question about why the plaintiff was “trending” on Twitter: 

Tugendhat J explained the approach to meaning of this symbol as follows: 

“[7] It is common ground between the parties that the words “innocent face” are to be read like 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 words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant's case, but insincerely or ironically on the Claimant's case) that she does not know the answer to her question.” 

The ordinary reasonable reader of tweets derives the meaning of the imputation from the circumstances surrounding the tweet, namely that the plaintiff’s name was trending because of an avalanche of publications in the red top press to the effect that the plaintiff was accused of being a paedophile (at [15] – [29]). In those circumstances, the plaintiff’s apparently innocent question (supported by the “innocent face” emoticon) was no mere innocent enquiry, but capable of the inference that the plaintiff had been publicly exposed, rightly, for conduct for which he was guilty. 

Tugendhat J explained:

“[84] In my judgment, the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question.”

Is it appropriate for a judge to determine a meaning based on an emoji without the benefit of expert evidence (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; (2002) 194 ALR 433; (2002) 77 ALJR 255 at [78] and [180]) or jury input (Trkulja at [29], [39], [52], [60] and [67])? After all, the number of cases involving the interpretation of emoji in other areas of the law is increasing (Professor E Goldman, “Emoji Law 2018 Year-in-Review”, https://blog.ericgoldman.org/archives/2019/01/emoji-law-2018-year-in-review.htm). Expert evidence was given as to publication issues in Voller

However, I do not consider expert evidence necessary. The parties did not suggest this step, and it should not be imposed on them by the court. There have already been rulings on the meaning of emoji in other areas of the law without such a requirement. In addition, there have been rulings on liability for publication and/or defamatory meaning for other non-verbal internet tools, such as the use of the “like” button (Bolton v Stoltenberg [2018] NSWSC 1518 at [171] and [183]; appeal dismissed: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45, citing at [99] the trial judge’s rejection of the argument that expert evidence was necessary) and the use of hashtags (AvePoint, Inc. v. Power Tools, Inc 981 F. Supp. 2d 496 (W.D. Va. 2013)). The expert evidence given in Voller related to Facebook’s publication set-up, rather than to widely understood (and widely used) emoji message meanings; no such technicalities apply here. 

How can a symbol of a face expressing a particular emotion convey serious meanings? Are emoji simply illustrations with no real meaning? Where the emoji in question occurs in the context of allegations of serious misconduct, are they capable of conveying imputations to that effect? In Bercow, Tugendhat J considered that they were: 

“[86] That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser? 

[87] The Newsnight report was not a report of an investigation by the police (or by anyone else). Nor do the media reports suggest that they were reporting on an investigation. The Newsnight report, and all the other reports are of the allegations of a man who complained he was sexually abused. It is true that some reports also included that the unnamed person who is accused of the crime has vehemently denied it. But what is reported is the accusation. The Tweet is linked to those reports, in that it adds a name that was not in the reports themselves. So it is by implication a repetition of the accusation with the addition of the name which had previously been omitted. 

[88] The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant's name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused's denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation.”

In the fast-moving world of online communication, emoji have largely replaced emoticons. Their ability to convey a set meaning is clear (see for example The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514 at [25] (“angry face” emoji). They are extensively used as a form of hieroglyph for meanings and as such are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary. 

The “zipper-mouth face” emoji 

The “zipper-mouth face” is noted in Emojipedia as being approved as part of Unicode 8.0 in 2015 and added to Emoji 1.0 in 2015. Its meaning is “a secret” or “stop talking”, in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer. 

The second relevant emoji, the face of the clock, need not be reproduced. The significant words are “tick tock”, which, in the context of the attached document stubs, imply that the clock is ticking for someone, namely the person the subject of the stubs, which is the plaintiff. 

The three emoji in the third tweet are: [not displayed here] 

Each of these is described in Emojipedia as follows: 

“Collision” was approved as part of Unicode 6.0 in 2010 under the name “Collision Symbol” and added to Emoji 1.0 in 2015. It may be used to illustrate a clash but is commonly used to represent something is excellent or exciting in some way. 

“Face with Tears of Joy” was one of the ten most popular emoji between 2014–2018 and was named the Oxford Dictionaries “2015 Word of the Year”. It was approved as part of Unicode 6.0 in 2010 and added to Emoji 1.0 in 2015. 

“Ghost”, which indicates something fun or goofy, was approved as part of Unicode 6.0 in 2010 and added to Emoji 1.0 in 2015. 

Emojipedia notes that the raised arms have resulted in its use to indicate “an excited Yay!” 

While I have noted these definitions, I have not construed the capacity of the imputations in accordance with them in any strict sense. The meanings conveyed by a publication are, as the Court of Appeal stressed in Corby, a matter of broad impression. 

The parties’ submissions 

By way of overview, Mr Senior submits that none of the three challenged imputations pleaded as arising from the matter complained of, even with these additional responses, is reasonably capable of being conveyed. 

Imputation 10(c) 

Mr Senior, relying upon Corby at [135] – [136], submits that there is no reference whatsoever to the plaintiff having been, or being likely to be, disciplined by any professional body for her conduct. The plaintiff’s 27 May 2020 tweet of a “stub” for an article in the Sydney Morning Herald in July 2019 contains no additional comment from the defendant apart from three dots (“…”) and the tag “#auspol”, neither of which would be capable of giving rise to any of the imputations pleaded. There is nothing in the additional material capable of adding such a meaning for any of the imputations pleaded. In particular, the “zipper-mouth face” conveys nothing other than that the defendant cannot reply. 

Mr Rasmussen first points out that the result of the disciplinary referral is asked about at [6], to which the zipper-mouth face (at [7]) is the reply. As to the inquiry about why this stub is being posted a year later, the ordinary reasonable social media reader would be well aware that Twitter posts are geared to “trending” news; this could be why the inquiry about posting an article that is nearly a year old is made. The inquiry seeks to know what the result was. The defendant’s answer is the “zipper-mouth face”. 

Mr Rasmussen submits that this “zipper-mouth face” is worth a thousand words – the emoji implies that there has been a finding damaging to the plaintiff, but the defendant is not at liberty to disclose the result, and instead must hint at it by posting the newspaper story from the previous year and using the “zipper-mouth face”, so the reader can guess the rest. 

Using the more traditional metaphor (coined by Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47 and often referred to in arguments on meaning; see Sube and another v News Group Newspapers Ltd and another [2018] EWHC 1234 (QB) at [22]), Mr Rasmussen submits that this Delphic response is the equivalent of shouting “fire” in a crowded theatre, giving rise to a defamatory meaning which is further inflamed by the three following comments. 

Viewed in the context of the reply sent by the defendant, the “zipper-mouth face” picks up on both aspects of the inquiry – the fact that the defendant is posting an article almost a year old and the result of the events the subject of the stub. This is a case where “joining the dots” (Joukhador v Network Ten Pty Limited [2020] FCA 746 at [43]) to achieve the meaning is a particularly likely exercise when carried out on a social media site, where the exchange of such information is more likely than a serious publication to contain hints of a sensational nature.