🤐 Can Emojis be Defamatory? 🤷

Yes, they can! And you could be sued.

Emoji’s are commonly used online and in text messages to express meanings and appear harmless and fun, but an Australian Court has recently confirmed that an emoji is capable of conveying a defamatory meaning 😲.

Generally, if words are published to a third party, they can give rise to an action for defamation if they carry allegations that cause harm to a person’s reputation. There are some defences to defamation such as ‘contextual truth’ and ‘honest and reasonable belief’ in the allegations.

In this recent case, one lawyer sued another for defamation on Twitter 🙄. One of the emojis used in the tweet was the ‘zipper-mouth face’ 🤐.

The Court referred to the online emoji dictionary ‘Emojipedia’ to establish the emoji’s meaning. Emojipedia says 🤐 emoji commonly conveys a secret or that someone will keep one (e.g., My lips are sealed).

The plaintiff lawyer was facing disciplinary action for her conduct in a previous Court matter where false affidavits were sworn. The defendant lawyer tweeted an article about that case and said “but what happened to her since? 🤐”.

The plaintiff lawyer said the zipper-mouth face emoji implied that there had been a finding damaging to her, and that the defendant knew the result, but was forbidden or reluctant to disclose it.

The Court was satisfied that the ordinary reasonable social media reader would infer that, while the clients “signed” the false affidavits, the plaintiff lawyer would also reasonably have been seen to be in trouble for her role in the preparation of the offending affidavits and /or their presentation to the Court.

The matter is ongoing but the initial judgment can be read online here http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWDC/2020/485.html

Emojis may seem harmless 🤷 but you should be cautious if you use them to publish anything online 💬 or in print ✍️, as the Courts now say they can be just as damaging as words ❗ 🤔.