Criminal legal eagles’ zipper-mouth emoji war lands in court
High profile criminal lawyer Zali Burrows has won the first round in her defamation case against fellow criminal lawyer Adam Houda in what is set to become an Australian test case on the use and meaning of emojis such as the zipper-mouth face.
Ms Burrows is suing Mr Houda over his tweets of a Sydney Morning Herald gossip column story arguing he is responsible for his tweets, retweets with comments and the related use of the emoji on social media and others including face with tears of joy, collision and ghost.
It will be argued that emojis are just as defamatory as words.
Ms Burrows is also suing the SMH over comments on a Facebook page about a gossip column story in which she claims she was fat-shamed and slut-shamed her, as well as implied she was romantically linked to the disgraced former Auburn deputy mayor Salim Mehajer. Ms Burrows is also suing over another SMH article which was the subject of Mr Houda's tweets.
In the District Court yesterday Judge Gibson handed down a judgment allowing Ms Burrows to add to her defamation case new Twitter posts and retweets featuring emojis to her statement of claim as well as include a claim for aggravated damages.
In her decision, Judge Judith Gibson said "As is sometimes the case with social media posts, the meanings may be gleaned from pictures as well as words and, where liability for publication arises from more than one post, from the dialogue which ensues."
Judge Gibson said the case will "substantially turn" on what the "zipper-mouth face" emoji means.
The judgement also said the case will consider replies to the tweets which include hashtags and links to other Twitter users and comments attached such as the words "tick tock" and an emoji showing a clock. Another reply which was a "retweet with comment" republishing the defendant's tweet, adding three emoji: "collision", "face with tears of joy" and "ghost".
Judge Gibson said "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."
Mr Roger Rasmussen for Ms Burrows argued that this "zipper-mouth face" is worth a thousand words - the emoji implies that there has been a finding damaging to Ms Burrows but the defendant (Mr Houda) 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."
Lawyers for Mr Houda said a tweet from May 27, 2020 of a "stub" of an SMH article from 2019 contained no additional comment from Mr Houda and the "zipper-mouth face" conveys nothing other than Mr Houda cannot reply.
Judge Gibson pointed out that the trial would have to consider the nature of modern communications and as such consult internet dictionaries, such as Emojipedia, to determine what the ordinary reasonable Twitter reader would make of the use of these symbols.
"One of the main changes to online writing style has been the introduction of two new-age hieroglyphic-style languages: emoticons and emoji," she wrote."
She defined an emoji as "A small digital image or icon used to express an idea, emotion, etc., in electronic communications."
Judge Gibson said she was satisfied in the circumstances said the imputation "is reasonably capable of being conveyed."
Mr Houda is represented by defamation lawyer Mark O'Brien who has been contacted for comment.
Mr O'Brien has previously said Mr Houda will be defending the case.
"It is a baseless claim and not valid at law because all my client did was tweet the Herald story that was a fair report of a court proceeding,"Mr O'Brien said earlier this year.
"I have written to Ms Burrows pointing out the flaws in her claim and have asked for the case to be discontinued.
Judge Gibson ordered Mr Houda pay the costs of Ms Burrows.
Originally published as Criminal legal eagles' zipper-mouth emoji war