“Dinosaur”: Noun, something completely outdated – Burrows v Houda [2020] NSWDC 485


I have been called a “dinosaur” because of my almost strict insistence that emails in professional settings must be drafted in a formal manner to ensure they convey their intended meaning by protecting accuracy at the expense of the haste of many “electronic communications”.

Similarly, I have been criticised for resisting using texting as a form of professional or business communication because the risk of miscommunication appears high because accuracy and good explanations are often sacrificed to haste in text message communications.

My “dinosaur” status does not extend to my response to emoticon and emoji use because I have never descended into the world of modern hieroglyphics in my business or personal capacity, except for the use of the “like button” on Facebook and, therefore, I cannot be said to have become outdated; I was never “in-date”.

I was recently told that a lawyer was criticised for communicating to another lawyer an “inappropriate” emoji.  The criticism related to the apparent meaning of the emoji.  My first “prehistoric” thoughts, recognising neither might be true, were: why in a professional capacity to apparently convey a professional meaning would a lawyer communicate to another lawyer an emoji with a subjective meaning and why did the respective lawyers consider it appropriate to transact business by emoji or even by text message?

To be “modern” or “fast” or “it does not need to be so formal nowadays”, were the responses from some quarters.

To be “inaccurate” and “at risk” came my retort; “smiley face”.

Then, all is forgotten about the emoji and I continue in my “prehistoric” pursuit of not using text messages, emoticons or emoji’s in my professional communication.

“And then”, I read Gibson DCJ’s enlightening decision in Burrows v Houda [2020] NSWDC 485 and some of the decisions Her Honour referred to in that judgment.

In light of that reading, I will need to rethink my use of the “like button” if its use can be considered as republishing something that could be defamatory.

And, I will remain adverse to the use of emoticons and emoji (as a collective noun) particularly in a professional setting considering the “innocent face” emoticon is not “innocent” and the “clock” emoji when used with other emoji is knowingly concerned in a defamatory imputation.

And, whilst the “zipper mouth face” emoji means “a secret” or “stop talking”, it can convey “a thousand words” particularly if used in conjunction with other media.  Therefore, I will not be using it in case “I mean it to mean” “stop talking”; only 2 words without the other 998.

Emojipedia appears to be the place to find the meanings of emoji.  But, that is not conclusive because even writing the name of the emoji could invoke its many imputations.  For example, what does: [insert name, perhaps somebody you do not like] collision zipper face with tears of joy (noting the absence of commas) mean to you as a sentence?

It will have a meaning able to be discerned at law with perhaps unanticipated consequences.

A considered and meaningful approach needs to be taken about the use of emoticons and emoji in business, professional, employment and social media settings because they have and are capable of conveying many meanings including defamatory imputations; take care.

What are your officers, employees, representatives and consultants, writing, texting, “emoticoning” or “emojiing” and are you liable for the inefficiencies and risk? The answer is yes, because language, whether modern, fast and hieroglyphic or considered and prosaic, matters.

I have broad experience in advising clients about the need to and how to express business rationale and meaning in professional communications particularly relating to franchising, competition and consumer law and strata titles.  I have also been surprised by and advised about the infelicitous communication in the strata and construction law spheres (both “for” and “against” clients’ interests).

In addition to my above areas of experience and interest, Kott Gunning is available to assist you in your legal dealings in various disciplines including litigation and dispute resolution, employee/employer relations, health and safety, commercial contract agreements and family law.

We look forward to helping you.

John Park – Partner – jpark@kottgunn.com.au

Ryan Lennon – Special Counsel – rlennon@kottgunn.com.au

Kellie Woods – Special Counsel – kwoods@kottgunn.com.au

The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.