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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  1. identicon
    Anonymous Coward, 1 Sep 2020 @ 5:55pm


    Not really. Critiquing anyone's sexual kinks these days is going to get you called out as a bigot. Love wins, after all.

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