Can I get in trouble for using emojis online?
O*NO! Did you know that using emoji’s online can now land you in legal hot water? This blog is all about the changes to Australia’s defamation laws following a recent court case (for any law nerds out there we are talking about Burrows v Houda [2020] NSWDC 485).
What is an Emoji?
Emoji’s have become a constant and, to some, an essential part of everyday communication. Originally, emoji’s were mainly facial expressions, the most popular being J and L. Now, they include an extensive range of pictograms of faces, objects, and symbols.
Whether you’re communicating with your employees or colleagues, or commenting on another agency’s social media – emoji’s can be a used to clarify messages, indicate feelings, and convey facial expressions. Even with these benefits, emoji’s have also added uncertainty to our digital communication. Since emoji’s are composed of pictures, and not words, their interpretation can differ from person to person. This can cause issues, and at worst, lead to you being sued for defamation.
What is defamation?
The law of defamation protects the reputation of a person or organisation. Defamation applies to material published to the public that has the tendency to injure a person’s reputation. Publication here means that the defamatory material was communicated to at least one person other than who it was about. Publication can happen in many ways, and therefore, does extend to digital communication. So, by commenting on someone’s posts or creating your own post, you are publishing material because it is being communicated to an online audience.
The material should also be reasonably referable to the person complaining about it. This can be explicit, such as referring to that person’s name or visage, or indirectly, such as the audience being able to identify the subject of the material because of extrinsic facts known to them.
Most importantly, the publication must contain material that is defamatory! Material will be defamatory if it is likely to lower the reputation of the person in the eyes of ordinary people. But not to worry, the entire message will be looked at and not a just the part that is claimed to be defamatory. This way parts of your communication cannot be taken out of context.
Wait, how can emoji’s be defamatory – they’re only pictures?!
Even though emoji’s are images, they carry meaning – look at the ancient Egyptian hieroglyphics! This is not a new phenomena, with many ancient civilisations using pictures to communicate. Emoji’s are now recognised as a form of communication in the Courts.
Recently, a lawyer has come under legal fire for using an emoji online. Lawyer Adam Houda retweeted an article about another lawyer, Zali Burrows, regarding a possible investigation into her by the ethics board. Responding to a comment on that post asking him about what had happened to Burrows, Houda responded with the zipper-mouth face emoji 🤐. Seems pretty innocent right? Well, not according to Burrows or the judge.
To understand what the emoji was actually saying the judge used an online dictionary/directory of emojis, the Unicode Consortium. According to this, the emoji conveyed a ‘stop talking’ or ‘there is a secret’ expression when the person knows the answer but is not allowed to or unwilling to answer. When considered with the article in the tweet, the emoji implied that something bad had happened to Burrows, such as being investigated, and that Houda was reluctant to talk about the results. As this was not true, Houda had published material that would lead others to think less of Burrows and was therefore committing defamation.
This was the first case in Australia dealing with emoji’s causing defamation, and the judge made it clear that images, just like words, are capable of communicating meaning.
Key Takeaways
Always be careful when communicating with or publishing emojis, emoticons, or images because they can convey defamatory meaning – especially when using your business account;
The risk of defamation is much higher if you or your business account is making posts criticising or alleging bad behaviour about someone else or their business – this is because you could potentially hurt their reputation;
If you are unsure about what an emoji means, it is always best to check on an online dictionary/directory before using it – better safe than sorry;
Even though an emoji may mean one thing, it can mean a completely different thing when considered in context of the entire communication; and
Most importantly, be careful on social media because the things you do online can have legal consequences for both you and your business!
Your next steps
If you ever find yourself in hot water, contact O*NO Legal at [email protected]. Or if you want to ensure you don’t have any other hidden risk areas in your agency book a FREE 10 minute chat with our team by clicking here.
Boring legal stuff: This article is general information only and cannot be regarded as legal, financial or accounting advice as it does not take into account your personal circumstances. For tailored advice, please contact us. PS - congratulations if you have read this far, you must love legal disclaimers or are a sucker for punishment.