Language and the use of same has and will arguably always be in a state of evolution. From cave paintings to hashtags, language has developed as society has moved forward. The rise of social media has seen the introduction of a whole new language consisting of faces and images to represent words or emotions. Like the hieroglyph, emoji’s are subject to interpretation which means they have the potential to offend or defame. This article will unpack how emojis can and have been considered defamatory. Assuming emoji’s can be defamatory, this article will then consider how the courts have interpreted same thus creating certain rules which can and should be applied in the future. Finally, the article will unpack reasons as to why case-by-case common law interpretation is the most viable and effective solution to the ever-evolving language of the emoji.
EMOJI’S AND DEFAMATION
Defamation
Every person has a right to an unimpaired reputation, a good name, and the esteem of others.1 The law of defamation empowers one to vindicate these rights. Thus, if a statement injures one’s personality it is arguably defamatory and potentially actionable.2 To succeed in a claim of defamation, certain elements must be established, namely: ‘publication, of a defamatory statement concerning the Plaintiff which is wrongful and intentional’.3 These elements, in relation to statements on social media, have had to adapt to new forms of communication but have however remained, for the most part, applicable.4
Emoji’s
‘Emoji’ is a term describing the use of punctuation, numbers, and letters in combination to create graphical images reflecting facial expressions, ideas, or emotions.5 Emoji’s simplify communication. Besides providing a new language, the popularity of emoji’s stems from the increased use of social media.6 Once the Unicode Consortium (“Unicode”) added emoji’s to its database the presence of emoji’s were solidified, thereafter becoming a widely accessible global phenomenon.7 The simplicity, accessibility, and development of new emoji’s has turned emoji’s into the language of the online era.8
Defamatory Emoji’s
Emoji’s being the language of the online era, though fascinating, should raise red flags in terms of the law of defamation. If emoji’s are a new language does that mean they, like any other form of communication, can be defamatory? Consider the comparison between “I am coming for you” and “I am coming for you 🔪”. The addition of the emoji in the latter text conveys an arguably alternative meaning to the former text and changes the nature and interpretation of same. As such, the influence that an emoji has on a text coupled with the potential meanings attributed to a single emoji could render an emoji potentially defamatory and thus subject to the elements of defamation. The precedent in Le Roux provides an alternative perspective. The court unequivocally stated that ‘in principle cartoons, caricatures or sketches can be defamatory’.9 This position, applied in other cases, confirms that the format of a publication does not undermine the defamatory effect of same. Thus, the potentially defamatory effect of an emoji, which is similar to an image or caricature, is not undermined by the fact that it is an emoji and not a text. The fact that an emoji communicates words, tone or emotions means that it can be defamatory. Furthermore, the fact that an emoji is not a typical form of publication does not undermine its defamatory effect.
INTERPRETATION OF EMOJI’S
The test
Determining whether a statement is defamatory involves a two-stage inquiry (“the test”): firstly, what is the meaning of a statement and second whether that statement is defamatory.10 Both stages contain further enquiries that must be undertaken to ultimately determine whether a statement is defamatory. Stage one asks what the ordinary and natural meaning of the statement is in the mind of the reasonable reader (“RR”).11 Stage two then considers whether the statement, as understood by the RR, is more likely to harm the Plaintiff than not.12
Application of the test to the emoji
The court in McAlpine13 and Houda14 was tasked with applying the test to emoji’s to determine whether the use of same was defamatory. In McAlpine, after applying the test the court held that a tweet, in its ordinary grammatical meaning, could have been considered a genuine question.15 However, after considering the context and applying the RR standard, it was held that the addition of the innocent face emoji (“face”) changed the nature of the tweet from a genuine question to a defamatory statement.16 The secondary meaning of the emoji negated neutrality, drew a conclusion and thus provided an answer that turned out to be untrue.17 In Houda, the court held that the defamatory meaning of a tweet was dependant on what the zipper face (“zipper”) actually meant.18 Notwithstanding the availability of a definition from Emojipedia19, the court, after considering the context and the RR, concluded that the Plaintiff’s inference of the tweet was incorrect and thus not defamatory.20 These cases highlight two interrelated points. Despite the similarity between the facts in the cases, applying the RR standard and considering context can result in vastly different outcomes which arguably makes context and the RR standard the most important factors when interpreting emoji’s.
Context
The importance of context, in general, was succinctly set out McAlpine where the court held that ‘the meaning of a statement and/or the extent to which the reader can draw defamatory inferences from words depends on the context’.21 McAlpine and Houda provided further insight into what the important contextual factors are in relation to an emoji. Firstly, the court should read the emoji in the context of the sentence or message as a whole as meaning is often found in the text which can work to clarify the emoji’s function.22 If, as in McAlpine, the sentence and emoji conflict then one must consider other factors. Second, the court must consider how the digital nature of emoji’s influences the platform upon which same appears. In Houda the use of Twitter influenced the interpretation of the zipper. The court denied the Plaintiff’s claim because the allegedly defamatory exchange occurred on twitter which is arguably not a platform on which serious publications appear, but rather publications of a sensational nature.23 The emoji appearing on twitter undermined the Plaintiff’s inference and led to same being denied.24 In McAlpine the court reasoned that the defendants followers were probably interested in politics and current affairs and which was thus a contextual factor that the court considered when deciding that the innocent face emoji was used ironically.25 Context, as it relates to emoji’s, has been influenced by its electronic nature, the platform and text within which it appears. Interpretation by courts thus requires application of alternative factors that are relevant when considering context.
The RR
RR is a mindset which forces judges to metaphorically remove their robes and adopt the mindset of the ordinary citizen to find the objective meaning of a statement.26 Thus, when interpreting a publication, the court must consider who the reader is and how they would have interpreted the information before them.27 The RR can be illustrated by comparing the RR of a newspaper to the RR on social media. The RR of a newspaper would arguably be someone who intentionally pursues information and who engages with content for the purposes of scrutinising same.28 The RR on social media, however, is not someone who, according to case law, scrutinises a post to contemplate potential meanings.29 This person does however have the capacity to read between the lines, and is aware of commonly held interpretations of emoji’s and texts.30 Due to the electronic nature of emoji’s and the consequent electronic platform upon which they are used, the court is forced to interpret emojis from the perspective of the latter RR. As such, the court must consider what meaning a person who has no real intention to scrutinise a post could derive from a brief skim of an emoji contained in a post.
Why common law interpretation?
Case-by-case analysis
Law, by its nature, is based on the notion of stare decisis which is the formulation of principles that can be consistently applied or referred to. The lack of consensus as to what meaning should be attached to a specific emoji coupled with their susceptibility to technological changes makes interpretation uncomfortable.31 Furthermore, the fact that emoji’s are not the same between devices and are interpreted differently by each culture means the effect of emoji’s is almost impossible to predict or create precedents around.32 Short of regulating the interpretation of emojis, the only reasonable solution is to apply the common law elements to emoji’s on a case-by-case basis. Courts have consistently risen to the challenge of interpreting new languages as demonstrated by courts interpreting drug and street slang.33 Furthermore, without other viable solutions, case-by-case interpretation is arguably the best way to ensure that the rights of both the writer and the reader are protected.
Constitutional balancing
Freedom of expression (“FOE”), enshrined in S16 of the Constitution is fundamentally a democratic principle ensuring dignity, autonomy, and participation in public life.34 It is the courts duty to ensure that FOE extends to social media.35 However, this freedom must be balanced against the right to dignity and privacy of citizens.36 The duty to ensure balance is precisely why common law interpretation is so important. Without the courts actively balancing rights, there is a risk of over-regulation which could lead to content being removed by platforms thus infringing on the right to FOE.37 However, refusing to remove content could infringe a person’s dignity or privacy both of which are also constitutionally enshrined rights. Interpreting emojis through the common law forces the courts to balance rights, consider context and come to a decision that is constitutionally sound and arguably fair.
The rise of social media has seen the development of a new language consisting of emoji’s. However, like any form of communication, the use of emoji’s can and have been used to defame and damage. The argument herein is that emoji’s, like images or cartoons, have the capacity to be defamatory and should therefore be subject to the law of defamation. Subjecting emoji’s to this body of law means that emoji’s have to be interpreted by courts on a case-by-case basis to determine whether they are actually defamatory. In interpreting emoji’s, courts have highlighted the importance of context as well as the application of the reasonable reader standard. Both factors ensure that the rights of writers and readers thereof are adequately canvassed and thus protected. Interpreting on case-by-case basis using the common law has arguably been the only viable solution to defamation through emoji’s. The constant addition of new emoji’s and new interpretations of same renders any other solution futile. Common law interpretation ensures that the use of emoji’s does not go unchecked while also protecting people’s rights to explore their right to freedom of expression.
Written By:
Mr Oliver Marshall
Legal Advisor
Kern, Armstrong & Associates
References:
1 Brand ‘Defamation’ in Joubert (ed) LAWSA vol 14(2) 3 ed (2017) para 109.
2 Ibid para 111.
3 Nicole Pelletier ‘The emoji that cost $20,000: Triggering liability for defamation on social media’ (2016) 52 Washington U J L & Policy, 234.
4 Ibid at 235.
5 Burrows v Houda [2020] NSWDC 485 para 20 – 21.
6 Op cit note 3 at 228.
7 Moshe Berliner 'When a Picture Is Not Worth a Thousand Words: Why Emojis Should Not Satisfy the Statute of Frauds' Writing Requirement' (2020) 41 Cardozo L Rev 2166.
8 Marilyn M McMahon and Elizabeth A Kirley 'When Cute Becomes Criminal: Emoji, Threats and Online Grooming' (2019-2020) 21 Minn JL Sci & Tech 40.
9 Le Roux v Dey 2011 (3) SA 274 (CC) para 104.
10 Manuel v Economic Freedom Fighters and Others [2019] 3 All SA 584 (GJ) 635.
11 Supra note 9 para 39 & 87.
12 Ibid para 91.
13 McAlpine v Bercow [2013] EWHC 1342 (QB).
14 Supra note 5.
15 Op cit note 3 at 249.
16 Supra note 13 para 68.
17 Ibid para 68, 71 & 85.
18 Supra note 5 para 13.
19 Ibid para 18.
20 Ibid para 46.
21 Supra note 13 para 62.
22 Op cit note 8 at 65.
23 Supra note 5 para 41.
24 Ibid.
25 Supra note 13 para 81 – 82.
26 Independent Newspapers Holdings v Suliman 2004 JDR 0526 (SCA) para 19.
27 NEHAWU v Tsatsi 2006 (6) SA 327 (SCA) para 8.
28 Supra note 27 para 20.
29 Stocker v Stocker [2019] 3 All ER 647 para 47 & 49.
30 Supra note 13.
31 Op cit note 7 at 2173.
32 Ibid.
33 Op cit note 8 at 76.
34 Khumalo v Holomisa 2002 (5) SA 401 (CC) para 21.
35 D. Sive and A. Price ‘Regulating expression on social media’ (2019) 1 SALJ 68.
36 Heroldt v Wills 2013 2 SA 530 (GSJ) para 8.
37 Op cit note 35 at 53.