Possibly the same emoji’s that you include in your tweets, text messages, emails, and blogs.

In August 2020, an Australian court heard the matter of Burrows v Houda where they were called upon to decide whether the use of the ‘zipper-mouth’ emoji could be considered as defamatory.

The story goes that a fairly well-known Australian criminal lawyer (Houda) had tweeted the aforementioned emoji following a Judges criticism in court on another fairly well-known Australian lawyer (Burrows).

Burrows had said that Houda’s tweet and the subsequent responses to said tweet had created a suggestion that she was facing a potential legal battle because of the Judges’ comments.

Burrows counsel submitted that none of Burrows tweets gave rise to any indication that the plaintiff was going to be disciplined by any professional body for her conduct. It was also argued that the ‘zipper-mouth’ emoji conveyed nothing other than “the defendant cannot reply”.

In the end, the court ruled in favour of the plaintiff and held that the defendant’s comments, when read in context, could have been understood as stating that the plaintiff was facing disciplinary action by a professional body.

Now this brings one to wonder what this means for us in South Africa.

Our Courts have not been called upon to decide whether an emoji could be considered as defamatory, however, if one takes a look at the elements required in order to establish defamation it is possible that our courts would be willing to rule in a manner similar to that of our Australian counterparts[1].

We already know that our right to free speech must be balanced against another’s right to reputation. We also know that our current law could be adapted rather seamlessly to solve issues that arise out of technology and so it goes without saying that there really isn’t anything standing in the way of our courts finding emoji’s defamatory.

The world is changing and so does the law along with it. Gone are the days when we could send a rude emoji (or even a good emoji) without having to think twice (and for obvious reasons, this is for the best).

So Next time you’re tapping away at your keyboard and dropping emoji’s in WhatsApps’s, Tweets, messages and emails, stop and think whether that emoji – whether it be the smiley-face or middle-finger – could be the reason you end up in court.

(Reference: Singh P “Can an Emoji Be

Considered as Defamation?

ALegal Analysis of Burrows v Houda

[2020] NSWDC 485″ PER / PELJ

2021(24) – DOI

http://dx.doi.org/10.17159/1727-3781/2021/v24i0a8918

[1] Elements of defamation: 1- wrongful 2- intentional 3- publication of 4-a defamatory statement 5-concerning the plaintiff