Burrows v Houda

District Court of NSW|2020-08-20

Plaintiff: Zali Burrows Defendant: Adam Houda Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr T B Senior

Solicitors: Plaintiff: Zali Burrows Lawyers Defendant: Mark O'Brien Legal File Number(s): 2020/213348 Publication restriction: None

The relevant principles

Where there is a challenge to capacity, a separate trial of capacity of the imputations the subject of challenge must be determined pursuant UCPR r 28.2 (Nationwide News v Hibbert [2015] NSWCA 13). Early case management rulings have been identified, in the United Kingdom, as an important part of efficient and inexpensive litigation (Defamation Costs Working Group 2013: Final Report, https://www.judiciary.uk/wp-content/uploads/2012/12/Defamation-costs_final-report_18-4-13-d.pdf at 5.1 - 5.14). The high cost of defamation proceedings, even for insured litigants, is inimical to justice, as recent judgments in other common law jurisdictions have observed (see for example Houston -v- Barniville & ors; Houston -v- Geoghegan & ors; Houston -v- The General Council of The Bar of Ireland; Houston -v- The General Council of The Bar of Ireland; Houston -v- O'Neill [2019] IEHC 601 at [7] - [8] and [110] - [113]). Early rulings on meaning, in appropriate cases, reduce this burden, as has been noted in English decisions even before the introduction of the serious harm threshold: see Church v MGN Limited [2012] 1 WLR 284; Dell'Olio v Associated Newspapers Ltd [2011] EWHC 3472. This is the general practice in Australian courts, other than the Federal Court: Hockey v Fairfax Media Publications Pty Limited (No 2) (2015) 237 FCR 127; [2015] FCA 750 at [118] (no imputations conveyed in the content of newspaper articles published by three media organisations, with resultant costs consequences for the lengthy trial); Gould v Jordan [2020] FCA 1191 at [20].
The principles for determining objections to capacity are set out in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6], as further explained in Corby v Alan & Unwin Pty Ltd [2014] NSWCA 227 at [135] - [136] ("Corby"), namely that the determination of capacity is a test of generosity, and not of parsimony, as meaning is "a matter of impression", where "the impression is not what the words mean but of what a jury could sensibly think they meant".
Challenges to the form of imputations generally take into account the principles set out by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137. In these proceedings, the defendant's challenge to the form of two imputations (namely the claim that imputations 6(b) and 10 (b) do not differ in substance from 6(a) and 10(a)) was dealt with on the basis of concessions made by Mr Rasmussen to replead the challenged imputations, and the resolution of these issues accordingly does not require reasons to be given. Those imputations appear in their agreed revised forms in this judgment.

The matters complained of

The first and second matters complained of are set out as annexures to this judgement. I note that there is no challenge to the basis upon which posts from third parties have been included in the matters complained of (as to which, see Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 at [42], [47] and [111] - [112] ("Voller") and Trkulja v Google LLC (2018) 263 CLR 149 ("Trkulja")).
As is sometimes the case with social media posts, the meanings may be gleaned from pictures as well as words and, where liability for publication arises from more than one post, from the dialogue which ensues.
The words and images in the first matter complained of are pleaded as giving rise to the following imputations: 1. The plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a lawyer (paragraph 6). 2. The plaintiff so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action (paragraphs 5 and 6). 3. The plaintiff is a criminal who signs false affidavits (paragraphs 5 and 8).
The words and images in the second matter complained of are pleaded as giving rise to the following imputations: 1. The plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a lawyer (paragraph 6). 2. The plaintiff so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action (paragraphs 5 and 6). 3. The plaintiff was disciplined by the lawyers professional body for her conduct in representing her clients, including Bonshaw Pty Ltd in court proceedings (paragraphs 6, 7 and 8). 4. The plaintiff's conduct as a lawyer during court proceedings over which Judge Wilson presided was so poor that the judge recommended that her clients be banned for life by ASIC and prosecuted for signing affidavits that they knew to be false (paragraphs 7 and 8). 5. The plaintiff's conduct as a lawyer during court proceedings over which Judge Wilson presided was criminal (paragraphs 2, 6, 7 and 8).

The text of the second matter complained of

The plaintiff's post received retweets, "likes" and, in particular, a reply which asked: "July 2019 story. But what happened to her since?"
The defendant's response is the emoji commonly referred to as "zipper-mouth face". The defamatory meaning of each of the three challenged imputations in the second matter complained of turns very substantially upon what this "zipper-mouth face" emoji means.
There is then a second reply, from another third party, which attaches two document stubs and provide the additional information that "Judge Wilson recommended Ms Burrow's clients be banned for life by ASIC and prosecuted for signing affidavits they knew to be false", followed by a series of hashtags and links to other Twitter users. This is followed by the words "tick tock" and an emoji showing a clock.
The third reply uses the "retweet with comment" to republish the defendant tweet, adding three emoji: "collision", "face with tears of joy" and "ghost".
The fourth reply does not resort to the use of emoji, but to English, albeit of a very colloquial nature, by adding the words "Ohmigod bro !!!!!" as a "retweet with comment".
This appears to be the first time that a court in Australia has been asked to rule on the capacity of an emoji to convey defamatory meaning, so it is a topic which I should approach with some care.

Defamatory meaning and emoji

Although there has been some academic criticism of judges for referring to sources such as Wikipedia (R Smyth, "What do Trial Judges Cite?, Evidence from the New South Wales District Court" [2018] UNSWLawJl 9; (2018) 41(1) UNSW Law Journal 211), the nature of modern communications makes consultation of internet dictionaries, such as Emojipedia, a necessary step for the trier of fact who seeks to determine what the ordinary reasonable Twitter reader would make of the use of these symbols.
The relevant principles for construing social media publications are helpfully set out by Warby J in Monroe v Hopkins [2017] EWHC 433 (QB), as summarised in Brose v Balauskas [2020] QDC 15 at [63] - [77]. The correct approach to take to the analysis of symbols such as "zipper-mouth face" is that set out in Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) ("Bercow"), where the court was called upon to determine the meaning of an "innocent face" emoticon.

Bercow, emoticons and emoji

One of the main changes to online writing style has been the introduction of two new-age hieroglyphic-style languages: emoticons and emoji. An "emoticon" is a portmanteau term (from "emotional icon") for pictures made from punctuation marks, letters and numbers to create an image displaying a sentiment and predates the internet as signs (such as :) or ʕ·ᴥ·ʔ) can be created with a keyboard.
An "emoji" is a more recent invention, consisting of pictographs of faces, objects and symbols; as the name would suggest, the origin of these pictographs is from use in Japan (the jury is still out on whether "emoji" is a collective noun or whether in its plural form it should be anglicised with an "s"; I have taken the former approach). The Oxford English Dictionary provides the following explanation: "Japanese emoji pictograph (1928 or earlier, perhaps after English pictograph n.), small digital image or icon used to express an idea, emotion, etc. in electronic communications (1990s) < e picture (formerly ye ; 8th cent. as we ; < Middle Chinese) + moji letter, character (10th cent.; contraction of mon character, word + ji character, letter (see kanji n.), based on a Middle Chinese compound; compare Chinese wénzì writing). The resemblance in form and meaning to emoticon n. is probably coincidental."
This results in the definition: "A small digital image or icon used to express an idea, emotion, etc., in electronic communications."
Emoji are used in addition to other meaning-conferring tools, such as hashtags and buttons for "like" or "retweet: (Voller at [85]).
The emoticon in Bercow consisted of words to portray an "innocent face" following what appeared to be an innocent question about why the plaintiff was "trending" on Twitter:
Tugendhat J explained the approach to meaning of this symbol as follows: "[7] It is common ground between the parties that the words "innocent face" are to be read like a stage direction, or an emoticon (a type of symbol commonly used in a text message or email). Readers are to imagine that they can see the Defendant's face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant's case, but insincerely or ironically on the Claimant's case) that she does not know the answer to her question."
The ordinary reasonable reader of tweets derives the meaning of the imputation from the circumstances surrounding the tweet, namely that the plaintiff's name was trending because of an avalanche of publications in the red top press to the effect that the plaintiff was accused of being a paedophile (at [15] - [29]). In those circumstances, the plaintiff's apparently innocent question (supported by the "innocent face" emoticon) was no mere innocent enquiry, but capable of the inference that the plaintiff had been publicly exposed, rightly, for conduct for which he was guilty. Tugendhat J explained: "[84] In my judgment, the reasonable reader would understand the words "innocent face" as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question."
Is it appropriate for a judge to determine a meaning based on an emoji without the benefit of expert evidence (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; (2002) 194 ALR 433; (2002) 77 ALJR 255 at [78] and [180]) or jury input (Trkulja at [29], [39], [52], [60] and [67])? After all, the number of cases involving the interpretation of emoji in other areas of the law is increasing (Professor E Goldman, "Emoji Law 2018 Year-in-Review", https://blog.ericgoldman.org/archives/2019/01/emoji-law-2018-year-in-review.htm). Expert evidence was given as to publication issues in Voller.
However, I do not consider expert evidence necessary. The parties did not suggest this step, and it should not be imposed on them by the court. There have already been rulings on the meaning of emoji in other areas of the law without such a requirement. In addition, there have been rulings on liability for publication and/or defamatory meaning for other non-verbal internet tools, such as the use of the "like" button (Bolton v Stoltenberg [2018] NSWSC 1518 at [171] and [183]; appeal dismissed: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45, citing at [99] the trial judge's rejection of the argument that expert evidence was necessary) and the use of hashtags (AvePoint, Inc. v. Power Tools, Inc 981 F. Supp. 2d 496 (W.D. Va. 2013)). The expert evidence given in Voller related to Facebook's publication set-up, rather than to widely understood (and widely used) emoji message meanings; no such technicalities apply here.
How can a symbol of a face expressing a particular emotion convey serious meanings? Are emoji simply illustrations with no real meaning? Where the emoji in question occurs in the context of allegations of serious misconduct, are they capable of conveying imputations to that effect? In Bercow, Tugendhat J considered that they were: "[86] That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser? [87] The Newsnight report was not a report of an investigation by the police (or by anyone else). Nor do the media reports suggest that they were reporting on an investigation. The Newsnight report, and all the other reports are of the allegations of a man who complained he was sexually abused. It is true that some reports also included that the unnamed person who is accused of the crime has vehemently denied it. But what is reported is the accusation. The Tweet is linked to those reports, in that it adds a name that was not in the reports themselves. So it is by implication a repetition of the accusation with the addition of the name which had previously been omitted. [88] The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant's name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused's denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation."
In the fast-moving world of online communication, emoji have largely replaced emoticons. Their ability to convey a set meaning is clear (see for example The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514 at [25] ("angry face" emoji). They are extensively used as a form of hieroglyph for meanings and as such are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary.

The "zipper-mouth face" emoji

The "zipper-mouth face" is noted in Emojipedia as being approved as part of Unicode 8.0 in 2015 and added to Emoji 1.0 in 2015. Its meaning is "a secret" or "stop talking", in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer.
The second relevant emoji, the face of the clock, need not be reproduced. The significant words are "tick tock", which, in the context of the attached document stubs, imply that the clock is ticking for someone, namely the person the subject of the stubs, which is the plaintiff.
The three emoji in the third tweet are :
Each of these is described in Emojipedia as follows: 1. "Collision" was approved as part of Unicode 6.0 in 2010 under the name "Collision Symbol" and added to Emoji 1.0 in 2015. It may be used to illustrate a clash but is commonly used to represent something is excellent or exciting in some way. 2. "Face with Tears of Joy" was one of the ten most popular emoji between 2014-2018 and was named the Oxford Dictionaries "2015 Word of the Year". It was approved as part of Unicode 6.0 in 2010 and added to Emoji 1.0 in 2015. 3. "Ghost", which indicates something fun or goofy, was approved as part of Unicode 6.0 in 2010 and added to Emoji 1.0 in 2015. Emojipedia notes that the raised arms have resulted in its use to indicate "an excited Yay!"
While I have noted these definitions, I have not construed the capacity of the imputations in accordance with them in any strict sense. The meanings conveyed by a publication are, as the Court of Appeal stressed in Corby, a matter of broad impression.

The parties' submissions

By way of overview, Mr Senior submits that none of the three challenged imputations pleaded as arising from the matter complained of, even with these additional responses, is reasonably capable of being conveyed.

Imputation 10(c)

Mr Senior, relying upon Corby at [135] - [136], submits that there is no reference whatsoever to the plaintiff having been, or being likely to be, disciplined by any professional body for her conduct. The plaintiff's 27 May 2020 tweet of a "stub" for an article in the Sydney morning Herald in July 2019 contains no additional comment from the defendant apart from three dots ("…") and the tag "#auspol", neither of which would be capable of giving rise to any of the imputations pleaded. There is nothing in the additional material capable of adding such a meaning for any of the imputations pleaded. In particular, the "zipper-mouth face" conveys nothing other than that the defendant cannot reply.
Mr Rasmussen first points out that the result of the disciplinary referral is asked about at [6], to which the zipper-mouth face (at [7]) is the reply. As to the inquiry about why this stub is being posted a year later, the ordinary reasonable social media reader would be well aware that Twitter posts are geared to "trending" news; this could be why the inquiry about posting an article that is nearly a year old is made. The inquiry seeks to know what the result was. The defendant's answer is the "zipper-mouth face".
Mr Rasmussen submits that this "zipper-mouth face" is worth a thousand words - the emoji implies that there has been a finding damaging to the plaintiff, but the defendant is not at liberty to disclose the result, and instead must hint at it by posting the newspaper story from the previous year and using the "zipper-mouth face", so the reader can guess the rest.
Using the more traditional metaphor (coined by Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47 and often referred to in arguments on meaning; see Sube and another v News Group Newspapers Ltd and another [2018] EWHC 1234 (QB) at [22]), Mr Rasmussen submits that this Delphic response is the equivalent of shouting "fire" in a crowded theatre, giving rise to a defamatory meaning which is further inflamed by the three following comments.
Viewed in the context of the reply sent by the defendant, the "zipper-mouth face" picks up on both aspects of the inquiry - the fact that the defendant is posting an article almost a year old and the result of the events the subject of the stub. This is a case where "joining the dots" (Joukhador v Network Ten Pty Limited [2020] FCA 746 at [43]) to achieve the meaning is a particularly likely exercise when carried out on a social media site, where the exchange of such information is more likely than a serious publication to contain hints of a sensational nature.
In all those circumstances, the imputation pleaded, namely that the plaintiff has not merely been the subject of a referral, but also a result adverse to her, is reasonably capable of being conveyed.

Imputation 10(d)

Mr Senior submits that the second matter complained of makes no reference to the plaintiff's conduct, as a lawyer or otherwise, during the court proceedings over which Judge Wilson presided. The comment at line 8 of the second matter complained of is confined to the findings made by Judge Wilson about the conduct engaged in by the plaintiff's clients, namely that they signed affidavits they knew to be false. The wrongdoers are her clients, not the plaintiff as their solicitor.
Mr Rasmussen first notes that the result of the disciplinary tribunal is asked about at [6], followed by the emoji response at [7] and then confirmed by the material at [8]. The post referring to the swearing of false affidavits would by inference be taken to be some of that subject matter, namely an inquiry into the professional conduct of a solicitor.
I am satisfied that the ordinary reasonable social media reader would infer that, while the clients "signed" the false affidavits, 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/or their presentation to the court. This is underlined by the words "tick tock" and use of the "clock face three o'clock" emoji, which infer that the plaintiff's time (in terms of being dealt with for her wrongdoing) was up.
The third and fourth posts add further emoji and comment to the defendant's post when they retweet it. They reinforce that the plaintiff's conduct is extremely serious and the subject of professional sanctions.
Taking these features into account, this imputation is reasonably capable of being conveyed.

Imputation 10(e)

Mr Senior essentially repeated his earlier arguments, but added that the ordinary reasonable reader would not infer criminal conduct as well as professional breaches.
I am satisfied that, in circumstances where the tweet clearly identifies that there is to be a prosecution for false swearing of affidavits, the ordinary reasonable social media reader would infer that one of those likely to be prosecuted would be the plaintiff, particularly given the "tick tock" and the three excited emoji in the third reply. This would amount to conduct of a criminal nature, and not merely professional misconduct.
This imputation is reasonably capable of being conveyed.

Costs and other Orders

The plaintiff was almost entirely successful in relation to this application, and should be entitled to a costs order in her favour.
However, both counsel should be commended for their efficient use of the Practice Note and their ability to resolve issues so quickly and professionally.
I set out below the orders, including case management orders, made following the hearing of this argument. (1) Imputations 6(b) and (10(b) struck out with leave to replead as "the plaintiff so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action". (2) Pursuant to Uniform Civil Procedure Rules r 28.2, imputations 10(c), (d) and (e) are reasonably capable of being conveyed. (3) The plaintiff have leave to file an amended statement of claim in 7 days containing the following amendments: (a) Imputations 6(b) and 10(b) as repleaded; (b) Typographical corrections to imputation 10(c) and paragraphs 11 and 13; (c) Additional particulars of aggravated damages; (d) The particulars of publication as set out in Mr Rasmussen's submissions; and (e) Attaching a USB containing coloured scanned copies of the Twitter posts which are pleaded to be the matters complained of. (4) Defendant pay plaintiff's costs of the application.

MCO 'A' - Burrows v Houda (947951, pdf) MCO 'B' - Burrows v Houda (377161, pdf)

Amendments 28 August 2020 - 28/08/2020: Brose v Balauskas [2020] QDC 20 in paragraph 19 changed to Brose v Balauskas [2020] QDC 15 31 August 2020 - Attached PDF DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2020

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Cases Cited (18)

Cited By (1)