Can an emoji be considered defamatory in South Africa?

19 April 2022,  Luhann PrinslooOdirile Matladi 687
Social media platforms and communication tools like WhatsApp and Telegram are part of all our lives and together with them the use of the little emoji. For some the emoji has even replaced normal language, conveying meaning simpler and faster using only an image. Unfortunately, the emoji has also developed a more sinister side with the emoji used to insult, harass, bully, belittle and demean and with creativity of use the only restriction curbing the scale of the onslaught. This leads one to wonder…. Do the same rules as with language abuse apply when emojis are used to attack another? Can the victim turn to the law and have their cries of defamation receive protection from our courts?

To answer to this question is unfortunately not straightforward and requires exposition of various elements that may have bearing on the result.

Social media has without doubt changed the manner in which we communicate with one another. The emoji is a prime example of this as the use of emoji images has expanded the digital lexicon that users now draw on when communicating. That said, although widely used, emojis do not have defined meanings. Rather, emojis may be assigned different meanings depending on the context and communities within which they are used. As they are subject to interpretation emojis may be harmless or have the potential to offend. But is causing offense the same as defamation?

The law of defamation makes vindication possible for anyone whose right to an unimpaired reputation, good name and esteem of others has been injured. To successfully claim damages as a result of defamation, the victim must prove that the elements of defamation were present, namely that there was a wrongful and intentional publication of a defamatory statement regarding the victim.

If this is applied to the use of an emoji, a two-stage enquiry is needed. Firstly, it would have to be determined what the ‘ordinary and natural meaning’ of the use of the emoji is in the mind of the reasonable reader. Secondly, it must be determined whether such use is defamatory, or, whether its use would be understood by the reasonable reader to harm the plaintiff’s personality. 

As case law surrounding the use of emojis is sparse, it is necessary to cast the net wide to also include foreign jurisdictions even if foreign case law is only instructive as to how our South African courts may view the use of emojis.

In the UK case of The Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB) the court had to decide whether the words in a tweet describing an emoji amounted to defamation. Although an actual emoji was not used, the words “innocent face” was used in reference to the typical innocent face emoji. The court emphasised that ‘the meaning of a statement or question depends on the context. The extent to which a reader can draw defamatory inferences from neutral words depends on the context’. The court, after considering the context of the tweet and applying the reasonable reader test, held that the negative connotation of the tweet that was implied by the emoji was defamatory.

Elsewhere, in Australia, in determining the possible defamatory effect of the zipper-mouth face emoji, an Australian court in Burrows v Houda [2020] NSWDC 485 applied a similar context and reasonable reader application test. Here, the court also found in favour of the plaintiff and held that, contrary to the defendant’s defense that the emoji suggested nothing other than the plaintiff not being able to reply to certain allegations made against the plaintiff, it also inferred a meaning adverse to the plaintiff and thus damaging to the plaintiff’s reputation. 

What one can take from the above cases is that the use of an emoji can be considered defamatory. However, the emoji on its own, like a word, is not in itself necessarily defamatory, but must its use (i.e., the context in which it was used) together with the application of the reasonable reader test be applied to establish whether defamation was present. In considering the context, it should also be considered that factors such as the platform, the general communication tone on the platform, as well as the different interfaces of varying platforms, may all have an effect on the implied meaning of an emoji.

Using an emoji is accordingly not automatically defamatory as the context and situation of each case would need to be considered. But this should not provide a false sense of comfort. Given the power and reach of social media, great care should be used when posting, including using emojis as users have a powerful and potentially dangerous weapon at their fingertips and should recognize this when using such platforms.

Disclaimer: This blog is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s). 

Related Expertise: Information Technology
Related Sectors: Media, Technology

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