It is the nature of law that when reporting on it, generally, we are speaking after the fact.

So, imagine our surprise when an article that we circulated in the & Legal 2018 Winter client newsletter edition forewarning that the intemperate use of Emoji’s may invite legal consequences, has now eventuated.

Our previous article suggested that “Emoji’s could be considered within the context of the facts and may prove pivotal in swaying a case” and that “whilst emoji law has not been significantly developed in Australia, individuals should be cautious of how they use them”.

Australia’s first Emoji-related defamation case was recently decided. In a matter heard in the District Court (Burrows v Houda [2020] NSWDC 485) the Court determined that certain emojis (standardised, hieroglyphic-style internet images) could convey a defaming meaning within the context of the tweeted remarks particularly where these remarks are retweeted.

Somewhat surprisingly, this defamation case was between two lawyers where one lawyer was seeking redress against another for engaging in commentary using emojis to impute that the defendant was guilty of misconduct and was in the process of being disciplined.

The loud and clear message from this case is that you should not use emojis, emoticons or memes where you are not sure of their meaning or where the meaning is ambiguous.  The test in defamation is not what you think it means or wanted it to mean, but what meaning the interpretation of the words and images are capable of being given.

Although the central theme of this article relates to defamation law, readers should consider the broader issue of liking, commenting or responding to tweets and be mindful that what you tweeted may be misinterpreted or taken out of context in a subsequent retweet.