Australian Court Says Zipper Mouth Emoji Might Be Defamatory

from the my-mouth-is-zipped dept

🤐. Hopefully that won't get me sued in Australia. Because a court there has determined that the zipper mouth emoji is capable of defamatory meaning. I should note, as we have many times in the past, that Australian defamation law is totally fucked up. They are among the worst of any industrialized nation, and we've been on end of absolutely ridiculous threats and harassment for years because of our coverage of totally wacky censorial Australian court decisions regarding defamation. To which I say: 😛

Thankfully, however, it appears that some changes may be afoot in Australia over this. New South Wales has recently passed some minor reforms that at least require there to be "serious harms" for defamation to be in play. And that's a huge step forward.

Anyway, this case -- which does take place in NSW -- is about whether or not that single emoji might possibly be considered defamatory. And, since I know that Santa Clara University law professor Eric Goldman is the go to expert on emoji and the law, I fully expected an analysis of this case from him and I was not disappointed.

The case involved a discussion about a lawyer who had been criticized by a judge. Someone on Twitter had asked what happened to the lawyer, leading to this reply:

Then there was a second reply (actually a quote tweet) from someone else with more emoji:

The question before the judge is whether or not the zipper faced emoji by itself might be considered defamatory. To be clear, under American law, I don't see how it possibly could be, because it's not stating anything that can be proven false. However, Australian law has the concept of "imputation," in which if there is "insult or innuendo" implied by a message, that perceived interpretation can be defamatory. Here the court said there's a possible (not definite) defamatory meaning, though takes a convoluted path to get there:

Mr Rasmussen first points out that the result of the disciplinary referral is asked about at [6], to which the zipper-mouth face (at [7]) is the reply. As to the inquiry about why this stub is being posted a year later, the ordinary reasonable social media reader would be well aware that Twitter posts are geared to “trending” news; this could be why the inquiry about posting an article that is nearly a year old is made. The inquiry seeks to know what the result was. The defendant’s answer is the “zipper-mouth face”.

Mr Rasmussen submits that this “zipper-mouth face” is worth a thousand words – the emoji implies that there has been a finding damaging to the plaintiff, but the defendant 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.

Using the more traditional metaphor (coined by Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47 and often referred to in arguments on meaning; see Sube and another v News Group Newspapers Ltd and another [2018] EWHC 1234 (QB) at [22]), Mr Rasmussen submits that this Delphic response is the equivalent of shouting “fire” in a crowded theatre, giving rise to a defamatory meaning which is further inflamed by the three following comments.

Viewed in the context of the reply sent by the defendant, the “zipper-mouth face” picks up on both aspects of the inquiry – the fact that the defendant is posting an article almost a year old and the result of the events the subject of the stub. This is a case where “joining the dots” (Joukhador v Network Ten Pty Limited [2020] FCA 746 at [43]) to achieve the meaning is a particularly likely exercise when carried out on a social media site, where the exchange of such information is more likely than a serious publication to contain hints of a sensational nature.

In all those circumstances, the imputation pleaded, namely that the plaintiff has not merely been the subject of a referral, but also a result adverse to her, is reasonably capable of being conveyed.

And, yes, I cringed at a court -- even an Australian one -- resorting to the misleading trope of "fire in a crowded theater". Even so, it still seems like a huge stretch to go from posting a zipper faced emoji along with a year old article "implies that there has been a finding damaging to the plaintiff, but the defendant is not at liberty to disclose the result."

Still, as Goldman summarizes:

The ruling thus concludes hat the zipper-mouth emoji has the capacity to be defamatory; the plaintiff gets a chance to keep making that argument. It doesn’t mean that the zipper-mouth emoji response was, in fact, defamatory. Indeed, I can imagine many ways the zipper-mouth emoji had non-defamatory meanings. For example, if the defendant didn’t have any inside information about the status of the disciplinary proceeding and his readers knew it, then the zipper-mouth would be an ironic usage to project onto the people on the inside who know something but aren’t talking about it. It could also mean that the defendant literally does have inside knowledge but is legally prevented from taking about it, whether the developments are good or bad. In subsequent proceedings in this case, the defendant will get a chance to show that the usage could be one of the other non-defamatory meanings.

A free speech protecting law would have had this kind of case tossed much more quickly, but that's not in existence in Australia, and thus this case continues. One might be tempted to say that this is a 🦘👩‍⚖️ but now I fear that might be defamatory in multiple ways.

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Filed Under: australia, defamation, emoji, imputations, social media, zipper mouth
Companies: twitter


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  • identicon
    Anonymous Coward, 1 Sep 2020 @ 4:22am

    No comment.

    reply to this | link to this | view in chronology ]

    • identicon
      Not THAT AC, 1 Sep 2020 @ 9:21am

      Re:

      You are Sir Thomas More and are therefore found to be guilty.

      Zipped mouth:

      • I will not speak of this, please don't ask.
      • I will not speak of this (but I may be implying something).
      • I will not speak of this. A reader may infer something further but that's on them.
      • I have a stock of Caucasian skin toned GIMP masks, would you like to buy one?

      reply to this | link to this | view in chronology ]

      • identicon
        Annonymouse, 2 Sep 2020 @ 5:04am

        Re: Re:

        You missed the obvious on the last one, sorta like the judge in this case

        So the update .... LEGO skin toned.... 🤐

        reply to this | link to this | view in chronology ]

        • identicon
          Not THAT AC, 2 Sep 2020 @ 6:21am

          Re: Re: Re:

          I'm could claim the colour balance on my monitor needs adjustment, but of course, you are correct and I posted without checking.

          (Insert appropriate non-judgemental emoji(s) here)

          reply to this | link to this | view in chronology ]

  • icon
    charliebrown (profile), 1 Sep 2020 @ 5:48am

    What a load of 🐮💩

    Also, I once had this smiley removed from Photobucket as it violated their terms of service https://i.imgur.com/vdKEcXw.gif

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 5:54am

    The thing about road signs is, their meaning was defined and is fixed. Eight-sided sign? stop. Triangle, red and white? Yield. Sign with numbers being the largest characters on the sign? Speed limit.

    The thing about emojis is, their meaning is whatever the author says it is. That emoji with blue drops from the eyes? It looks a lot like crying, but happy? Sad? Frustrated? Onions? Or even "in desperate need of an eye-wash station" ?

    I could just as easily defame someone by saying their narwhal bacons at only 10:30.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 2 Sep 2020 @ 3:31am

      Re:

      "I could just as easily defame someone by saying their narwhal bacons at only 10:30."

      Them's fighting words.
      Better expect a horde of redditors at your door with torches and pitchforks.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 6:54am

    M'lud, plaintiff is well aware that cetacean meat takes much longer to cure, and as a matter of fact it is not possible to complete the preservation process before Tuesday. This allegation, regardless of any truth or falsity of any part of it, is a viscious assault on the integrity of my client's curation with respect to all edible meat by-products, and my client's reputation has been harmed irretrievably. My client demands compensation from the court for the distress this has caused his family and friends, (the existance of the latter of which the court is required to assume despite assertions to the contrary), as well as....

    Does Australia have RICO?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 8:17am

    What about...

    So this is just crazy to me... but I thought of something that seems a bit more so to me, so let's take bets on when it'll happen (or again if it already has)...
    Next up, deleting a tweet for defamation!

    Let's see who out lucky winner is next on name that defame all but insane!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 9:33am

    Should I be worried that my first thought on seeing the headline was whether Australia had a law against discrimination of sexual kinks and the emoji was being used as some sort of bondage insult?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 2:32pm

    I imagine that in some twisted way, emojis could be considered hate speech, meaning techdirt should be arguing against their use. How does this publisher handle the cognitive dissonance? 🤐

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Sep 2020 @ 3:51am

    Its obvious

    The judge was previously a lawyer and is just letting the lawyers make more money by allowing them to argue for something that doesn't matter because the answer is NO. Or, maybe he just wants to see how silly the one arguing the point has to become to try to make it.

    Lawyers make money and the judge gets a private laugh.

    Australia, remember ;)

    reply to this | link to this | view in chronology ]

    • identicon
      Annonymouse, 2 Sep 2020 @ 5:14am

      Re: Its obvious

      Or even more obvious is that the judges mental faculties have been compromised.
      It is pure speculation as to why though prime candidates are extended over indulgence of various controlled sibstances or an STD or three or just local mind munching parasites.

      reply to this | link to this | view in chronology ]

  • icon
    Prajapatiadvertising (profile), 2 Sep 2020 @ 6:02am

    Great Information

    reply to this | link to this | view in chronology ]


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