The action was brought over a series of retweets Mr Houda made on a Twitter account in relation to an article from a Nine publication claiming that a judge had recommended Ms Burrows be referred for possible disciplinary action. Mr Houda had objected to the statement of claim, an issue that was resolved during oral arguments. 

“As is sometimes the case with social media posts, the meaning may be gleaned from pictures as well as words and, where liability for publication arises, from more than the one post, from the dialogue which ensues,” DCJ Gibson said in the judgement. 

Ms Burrows alleged that Mr Houda had implied she was potentially facing a legal battle after a judge made scathing remarks about her competency as a lawyer, that she had misconducted herself during a case and she is a criminal who signs false affidavits.

DCJ did not request expert evidence on the use of the emojis and instead determined the case based on past rulings on the meaning of emojis in other areas of the law. For example, there have been rulings on liability for publication and defamatory meanings for other non-verbal internet tools, such as the use of the “like” button. 

“In the fast-moving world of online communication, emojis largely replaced emoticons,” said DCJ Gibson. “Their ability to convey a set of meaning is clear. They are used as a form of hieroglyphs for meaning and are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary.” 

The defamatory implications hinged on the way the court defined a “zipper-mouth face” emoji, a “ghost”, “clock”, “collision” and “face with tears of joy” emoji. In a fourth tweet, the judge was also tasked with determining the language and meaning of a colloquial nature of the words “Ohmigod bro !!!!” [sic] in response to the article. 

The lawyer for Ms Burrows submitted that the “zipper-mouth face” emoji was “worth a thousand words” and implied that there was a finding damaging to Ms Burrows but Mr Houda was not at liberty to disclose it so “instead must hint at it by posting a newspaper story and using the ‘zipper-mouth face’ so the reader can guess the rest”. 

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Another reply, from a third party, attached two document stubs that said a judge would recommend Ms Burrow’s clients be banned for life by ASIC and prosecuted for signing affidavits they knew to be false. The reply was followed by a series of hashtags, the words ‘tick tock’ and an emoji showing a clock.

“I am satisfied that the ordinary reasonable social media reader would infer that, while the clients ‘signed’ the false affidavit, the plaintiff, who was a solicitor reported to be in trouble with the judge, would also reasonably have been seen to be in trouble for her role in the preparation of the offending affidavits and their presentation to the court,” DCJ Gibson concluded.

“This is underlined by the words ‘tick tock’ and the use of the ‘clock face three o’clock’ emoji, which infer the plaintiff’s time (in terms of being dealt with for wrongdoing) was up.”

Read more at Austlii: Burrows v Houda [2020] NSWDC 485