Troubled emojis Quarter 1 2022

By DHAHINI NAIDU, Published in Cyber Law

The use of emojis has become part of everyday communication, and they are regularly exchanged by most people on both an informal and formal basis. If one looks at the multitude of social media groups, emojis are often used together with text to depict an emotion or otherwise add to the receiver's or readers' understanding of the text (Nicole Pelletier 'The emoji that cost $20,000: Triggering liability for defamation on social media' (2016) 52 Justice Reform Washington University Journal of Law and Policy).

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As a result, legal consequences in relation to the use of emojis may follow for the users of social media platforms. In South Africa, there has been no case dealing specifically with the use of emojis, but there is case law that deals with "defamatory content". It is inevitable that a case relating to the use of emojis will materialise.

Emojis are not explicitly branded or defined under SA law, but an emoji sent electronically constitutes a "data message" under the Electronic Communications and Transactions Act (25 of 2002) (ECTA). Section 13 (5) of ECTA expressly provides that an expression of intent or other statement can have legal force, even in the absence of an electronic signature, if there are other means from which a person's intent or statement can be inferred. Data messages are actionable under SA law, and emojis contained in them could serve as proof before a court to clarify the underlying intent of content exchanged electronically, whether on a social media platform or in other electronic communication.

The law of defamation in South Africa balances two fundamental rights entrenched in the Constitution, namely the right to freedom of expression and the right to dignity (in the form of a person's good name and reputation – sometimes called "external dignity").

This article will investigate how emojis used on social media platforms and in other electronic communication could potentially constitute actionable defamatory content. It will also discuss critically how SA courts ought to go about determining the meaning of emojis in the context of disputes, in the context of an action for defamation.

Definition of defamation

Sanette Nel ("Chapter 12: Freedom of expression, anonymity and the internet" in Sylvia Papadopoulos and Sizwe Snail (eds) Cyberlaw @ SA III: The Law of the Internet in South Africa) defines defamation as the intentional publication of words or behaviour concerning another which has the propensity to damage such a person's status, good name or reputation.

"The law of defamation in South Africa is based on the actio iniuriarum, which affords a plaintiff the right to claim damages where their personality rights have been impaired intentionally by the unlawful act of another (Khumalo v Holomisa 2002 (5) SA 401 (CC)).

The elements of the delict of defamation at common law are the a) publication; b) of a defamatory statement; c) about the plaintiff; d) made wrongfully e) and intentionally. The first three elements are discussed below.

A. Publication

The publication requirement is that another person has seen the item – in this case, the emoji. It is not necessary to have been widely published; sight by just one other person is enough.

b. Defamatory effect

When considering whether a publication has a defamatory effect, a court must determine the meaning and its effect on the plaintiff. The second stage of the test requires balancing the rights to the plaintiff's dignity and privacy, and the defendant's right to freedom of expression. In essence, the court must ask: what is the effect of the defamatory content on the plaintiff's Constitutional rights of dignity and privacy, and on the defendant's right to freedom of expression? There are situations where the right to dignity will be outweighed by the right to freedom of expression. Therefore, context is of utmost importance in making this determination. "Each case must depend on its own circumstances, and courts must ensure that they effect the appropriate balance." (NEHAWU v Tsatsi 2006 (6) SA 327 (SCA)).

"Defamation is aimed at compensating the victim for any publication that injures the plaintiff in his good name and reputation." (Le Roux v Dey 2011 (3) SA 274 (CC)). South Africa's Constitution also informs the law of defamation and the courts have held that when considering whether or not publication is defamatory, one would look at how "a reasonable observer would look at it through the prism of the Constitution and in relation to its values" (Le Roux v Dey).

A two-stage test ought to be applied to establish whether or not a publication is defamatory and, on its face, wrongful. The first leg is to 1) determine the meaning of the publication as a matter of interpretation and 2) whether that meaning is defamatory. For the court to answer question 1, it would have to determine the ordinary and natural meaning of what was published, and how a reasonable observer would interpret the publication or understand it. This is an objective test. (NEHAWU v Tsatsi 2006 (6) SA 327 (SCA)).

Meaning is generally expressed by words, but a picture, and thus an emoji, could also express a point that might be even stronger than ordinary language. Context is key, and the nature of the viewers or readers ought to be considered when applying the test.

C. About the plaintiff

Once the meaning of the publication has been determined and its effect has been considered, the reputation, character and conduct of the plaintiff must also be considered. A plaintiff who is an upstanding and respected person of society may be more successful in a claim, or attain a higher damages claim than someone of more dubious honour.

Where it must be determined whether a defamatory statement labelling a group of individuals also refers to a particular participant of the group or organisation, the test to be applied is an objective one (Sauls v Hendricks 1992 (3) SA 912).

The court must also consider the motives and conduct of the defendant in a defamation action. When looking at current case law, a court would be more inclined to award greater damages to the plaintiff if the defendant's conduct is baseless and constitutes a conscious attempt to destroy the reputation of the plaintiff. This can be distinguished from the situation where a defendant acts out of a sense of duty, or in the interest of justice and in the public's interest, as with the media.

Burrows v Houda [2020] NSWDC 485 and other cases internationally dealing with emojis

In Houda, a 2020 Australian case, it was held that the use of an emoji can have defamatory meaning. The plaintiff in the case was an attorney who instituted proceedings regarding Tweets published by the defendant, a well-known attorney in Australia, who previously employed the plaintiff.

On 27 May 2020, the defendant tweeted an article from July 2019 concerning the plaintiff. One of the defendant's followers asked the defendant what had happened to the plaintiff since the article, given that it was published almost a year earlier. The defendant responded with a "zipper mouth" emoji face. This, in turn, provoked further emoji responses on the post from other followers.

What was clear from this case is that there are already judgments that have been determined on the meaning of an emoji in other areas of law.

Gibson J noted that "[on] Emojipedia the zipper-mouth face emoji carried the meaning of a "secret" or to "stop talking" in events where it was implied that a person knew the answer but was reluctant to give it" (Burrows v Houda 2020 NSWDC 485).

Since society increasingly interacts on social media platforms in every sphere of life, whether personal or professional, the court's reliance on Emojipedia in Houda was necessary to determine what the reasonable observer on a social platform like Twitter would make of the use of the emojis in the post.

"The correct approach to take to the analysis of symbols… is that set out in … Bercow … where the court was called upon to determine the meaning of an 'innocent face' emoticon."

There are other cases in which it has been confirmed that an emoji can express a set meaning (The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd 2018 VSC 514).

In other jurisdictions, such as America and Israel, courts have determined that an emoji can prove intent (an element of defamation in the SA context) in court (See Yaniv Dahan v. Nir Chaim Sacharoff, File No. 30823-08-16 Small Claims (Herzliya), Nevo Legal Database (Isr.) (2017).

Critical discussion on interpretation and meaning

Emojis are often open to various interpretations, especially on a cultural and global scale, which could result in ambiguity, and which might make it hard to determine an individual's intentions. Again, context is crucial to determine the intent of the use of the relevant emoji. The increase of crimen injuria cases in South Africa over the past few years makes it important that those who use emojis are conscious of the consequences and interpretation of their use.

Particularly on social media platforms, the use of an emoji in a post that goes viral also carries the risk of a continuous republication, which could result in damages against not just the publisher, but anyone who republishes.

Given the wide ranges of interpretation based on different cultures, belief systems and jurisdictions, it makes sense that courts (as can be seen from the international judgments) tend to rely on the likes of Emojipedia or an expert when interpreting the meaning of a specific emoji.

Conclusion

The South African courts have awarded damages for defamatory comments made on social media (Isparta v Richter 2013 (6) SA 4529 (GP)) and have no shortage of authority in dealing with the admissibility of documents or publications emanating from an electronic source. What is clear is that the use of an emoji can have consequences and an impact on its publisher. Even though South Africa has not yet dealt with a case focusing on the use and meaning of an emoji, there is legislation and case law that deals with defamatory content and the admissibility of data messages. The courts are obliged to, and have applied international law to their judgments and, given international precedent on the use of emojis, it is likely that South Africa's courts will follow suit when the need arises.

Naidu is a Director, Fairbridges Wertheim Becker.