By Alison Chen (BA/LLB III)
Modern problems require modern solutions, as Justice Gibson recently discovered while delivering the preliminary judgment in Burrows v Houda [2020] NSWDC 485. In what may be one of the first Australian cases concerning the possibility of defamation by emoji (specifically a zipper face emoji on Twitter), the learned judge stated that “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 use of these symbols”.
Emoticons are believed to have originated as “typographical art” from an 1881 issue of the American satirical magazine, Puck, where punctuation marks were arranged in a manner to depict common facial expressions. Emojis, on the other hand, were created in 1998 by Japanese engineer Shigetaka Kurita, as a way for people to communicate through icons. Today, they have become an indispensable aspect of how we communicate with others, as a handy shortcut or to provide meaning and context to other messages. Inevitably, emojis and emoticons have become the subject of court cases around the world, raising questions about their use and interpretation by courts.
‘Typographical Art’ from Puck Magazine, 1881
A brief overview of the use and interpretation of emoji in court
Burrows v Houda was not the first time where a court has found that emojis used in a Tweet could impute defamatory meaning. The UK case of Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) concerned the defendant’s use of the “innocent face” emoji following a purportedly innocent question about the plaintiff trending on Twitter. The Court held that the ordinary reader would interpret the emoji as suggesting an “insincere and ironical” reading of the tweet. In the context and circumstances of the case, which included significant media coverage regarding the parties in the case, the use of the emoji was serious enough to imply an allegation of guilt on the part of the plaintiff.
In various criminal law cases, emojis have been found to constitute threats of violence to the receivers of the message. In France, a man was sentenced to six months in prison and ordered to pay €1000 in damages after sending a flurry of messages to his ex-girlfriend after their break-up, including a gun emoji. The gun emoji was found to constitute a death threat via image, with the judge noting that the receiver was afraid to leave her home and had recurrent nightmares after receiving the messages. In the US, two men were charged with stalking after sending an emoji-only message on Facebook to a victim whom they had previously attacked, consisting of a fist emoji, pointing finger emoji and an ambulance emoji.
In Israel, a court ruled that a series of text messages including emojis could signify intent to enter into a contractual agreement. The plaintiff had listed a property as a classified advertisement online and had received a WhatsApp message containing emojis from a person expressing interest in the property. Ultimately, the defendant opted for a different property and the court found that although the parties had not entered into a binding contractual agreement, the emojis had conveyed a strong desire and optimism to rent the property and misled the plaintiff into thinking that an agreement was impending.
On the other side of the bench, UK Justice Peter Jackson used emojis and simple English in Lancashire County Council v M and others [2016] EWFC 9 to explain the custody arrangements in place so the mother and children could understand the judgment. The judgment received widespread praise for its readability and accessibility and was even considered for an award by the Plain English Campaign.
What does this mean for future cases?
An increase in the uptake of modern forms of communication in recent years, particularly during the COVID-19 pandemic, has provided us with new ways of conveying meaning, expressing opinions and staying connected. However, in construing the meaning of these communications, one needs to be cognisant of intergenerational differences in digital habits and any implicit meanings. Practices such as the use (or non-use) of punctuation at the end of a text message may imply aggression to some generations, but other generations may construe it normally as proper English.
Although Justice Gibson determined in Burrows v Houda that expert evidence was not necessary in determining the interpretation of the emojis, it is important to note that people may interpret emojis differently and this can lead to questions regarding the intent of the sender and the reaction of the receiver. As the saying goes, “a picture tells a thousand words”. Additionally, different platforms render emojis differently, which has the potential to lead to serious miscommunications and differing interpretations.
Inevitably, emojis will slowly loom large in the courtroom, and maybe courts will need to examine how they assess the intent and significance of these “new-age hieroglyphic-style languages” (Burrows v Houda [20]), whether that may be through bringing in linguistic, communication and cultural experts to aid in interpretation.