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Burrows v Houda

Burrows v Houda

Case [2020] NSWDC 485 27 August 2020

Defamation

Repudiation & Termination

Compensatory Damages

Tort Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Burrows v Houda [2020] NSWDC 485
Hearing dates: 20 August 2020
Date of orders: 20 August 2020
Decision date: 27 August 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(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.

Catchwords:
TORT – defamation – capacity of imputations – emoticons and emoji - meaning of “zipper-mouth face” emoji

Legislation Cited:
Practice Note 6 (District Court Defamation List)
Uniform Civil Procedure Rules 2005 (“UCPR”) rr 15.19, 28.2

Cases Cited:
Australian News Channel Pty Ltd v Voller [2020] NSWCA 102
AvePoint, Inc. v. Power Tools, Inc 981 F. Supp. 2d 496 (W.D. Va. 2013).
Bolton v Stoltenberg [2018] NSWSC 1518
Brose v Balauskas [2020] QDC 15
Corby v Alan & Unwin Pty Ltd [2014] NSWCA 227
Dell'Olio v Associated Newspapers Ltd [2011] EWHC 3472
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; (2002) 194 ALR 433; (2002) 77 ALJR 255
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Hockey v Fairfax Media Publications Pty Limited & Ors(No 2) (2015) 237 FCR 127; [2015] FCA 750
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
Church v MGN Limited [2012] 1 WLR 284
Gould v Jordan [2020] FCA 1191
Joukhador v Network Ten Pty Limited [2020] FCA 746
Loder v Bolton [2020] NSWCA 45
Lord McAlpine of West Green v Bercow [2013] EWHC 1342
Monroe v Hopkins [2017] EWHC 433
Nationwide News v Hibbert [2015] NSWCA 13
Schenck v. United States, 249 U.S. 47
Sube and another v News Group Newspapers Ltd and another [2018] EWHC 1234
The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514
Trkulja v Google LLC (2018) 263 CLR 149

Texts Cited:
Defamation Costs Working Group 2013: Final Report
Professor E Goldman, “Emoji Law 2018 Year-in-Review”
R Smyth, “What do Trial Judges Cite?”, Evidence from the New South Wales District Court" [2018] UNSWLawJl 9

Category: Procedural and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burrows v Houda

Details

AGLC: Burrows v Houda [2020] NSWDC 485
Case: [2020] NSWDC 485
Decision Date: 27 August 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Burrows v Houda involved a defamation claim brought by the plaintiff, Burrows, against the defendant, Houda, over allegedly defamatory statements made on Twitter. The crux of the dispute was the interpretation of specific emojis and emoticons used in the Twitter posts, including the “zipper-mouth face” emoji, and their defamatory implications. The plaintiff argued that the defendant's use of these symbols in their tweets about her conduct during a court case constituted defamatory imputations. The defendant contested the interpretation of these symbols and the associated defamatory meanings.

The court was tasked with determining the legal meaning of the emojis and emoticons used in the tweets and whether they conveyed defamatory imputations. Specifically, the court needed to decide whether the “zipper-mouth face” emoji and other symbols were reasonably capable of carrying the defamatory meanings ascribed by the plaintiff. The court also had to consider the broader context in which these symbols were used and how a reasonable reader might interpret them.

In its judgment, the court ruled that the “zipper-mouth face” emoji and similar symbols could be reasonably interpreted as defamatory, particularly when considered alongside the text accompanying the symbols. The court held that certain imputations pleaded by the plaintiff were capable of being defamatory and should not be struck out. However, it also determined that some of the pleaded imputations were too vague or required clarification. The court allowed the plaintiff to amend her statement of claim to replead the relevant imputations more precisely and to include additional particulars and evidence, such as a USB containing scanned copies of the Twitter posts.

The court made several orders, including striking out certain imputations with leave to replead, allowing the plaintiff to file an amended statement of claim within a specified timeframe, and directing the defendant to pay the plaintiff’s costs of the application. This ruling provided clarity on the interpretation of emojis and emoticons in the context of defamation claims and set a precedent for future cases involving similar issues.

Orders

Orders of the court

Orders:

(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;

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Burrows v Houda [2020] NSWDC 485

Most Recent Citation

Burrows v Houda (No. 2) [2021] NSWDC 127

Cases Citing This Decision

Burrows v Houda (No 3) [2025] NSWDC 77
Citation 1 (Para 3)

…After rulings on pleadings ( Burrows v Houda [2020] NSWDC 485; Burrows v Houda (No 2) [2021] NSWDC 127) and completion of all interlocutory steps, the parties were ready for trial so, on 20 October 2022, orders were made for the parties to approach the List Judge to obtain a hearing date.…
Burrows v Houda (No. 2) [2021] NSWDC 127
Citation 2 (Para 1)

…ions the subject of these claims are two Twitter posts dated 29 th July 2019 and 27 th May 2020, the contents of which are set out in Burrows v Houda [2020] NSWDC 485.…

See all citing cases →

Cases Cited

Gould v Jordan [2020] FCA 1191
Citation 1 (Para 5)

…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].…
Australian News Channel Pty Ltd v Voller [2020] NSWCA 102
Citation 2 (Para 8)

…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 ”)).…
Joukhador v Network Ten Pty Limited [2020] FCA 746
Citation 3 (Para 41)

…ear 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 likel…
Stoltenberg v Bolton [2020] NSWCA 45
Citation 4 (Para 28)

…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,…
Brisbane Survey Group Pty Ltd v McBurnie [2020] QDC 20
Citation 5

…28 August 2020 - 28/08/2020: Brose v Balauskas [2020] QDC 20 in paragraph 19 changed to Brose v Balauskas [2020] QDC 15…
Brose v Baluskas (No 6) [2020] QDC 15
Citation 6 (Para 19)

…or 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…
Bolton v Stoltenberg [2018] NSWSC 1518
Citation 7 (Para 28)

…bility 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 th…
The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514
Citation 8 (Para 30)

…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 n…
Trkulja v Google LLC [2018] HCA 25
Citation 9 (Para 8)

…e 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 ”)).…
Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750
Citation 10

…Medium Neutral Citation: Burrows v Houda [2020] NSWDC 485 Hearing dates: 20 August 2020 Date of orders: 20 August 2020 Decision date: 27 August 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders: (1) Imputations 6(b) and (10(b) struck out with leave to replead as “the plaintiff so miscondu…
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Citation 11 (Para 6)

…ns 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 imp…
Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13
Citation 12 (Para 5)

…apacity, 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 ( Defamatio…
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Citation 13 (Para 6)

…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 parsi…
Dow Jones & Co Inc v Gutnick [2002] HCA 56
Citation 14 (Para 27)

…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 involvi…
Drummoyne Municipal Council v Australian Broadcasting Corporation 79 ER 667
Citation 15 (Para 7)

…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 diff…
[2012] 1 WLR 284 [2012] 1 WLR 284
Citation 16 (Para 5)

…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…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 15.19, 28.2
2 mentions (from Para 1)

Medium Neutral Citation:	Burrows v Houda [2020] NSWDC 485
Hearing dates:	20 August 2020
Date of orders:	20 August 2020
Decision date:	27 August 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (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.
Catchwords:	TORT – defamation – capacity of imputations – emoticons and emoji - meaning of “zipper-mouth face” emoji
Legislation Cited:	Practice Note 6 (District Court Defamation List) Uniform Civil Procedure Rules 2005 (“UCPR”) rr 15.19, 28.2
Cases Cited:	Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 AvePoint, Inc. v. Power Tools, Inc 981 F. Supp. 2d 496 (W.D. Va. 2013). Bolton v Stoltenberg [2018] NSWSC 1518 Brose v Balauskas [2020] QDC 15 Corby v Alan & Unwin Pty Ltd [2014] NSWCA 227 Dell'Olio v Associated Newspapers Ltd [2011] EWHC 3472 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; (2002) 194 ALR 433; (2002) 77 ALJR 255 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Hockey v Fairfax Media Publications Pty Limited & Ors(No 2) (2015) 237 FCR 127; [2015] FCA 750 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 Church v MGN Limited [2012] 1 WLR 284 Gould v Jordan [2020] FCA 1191 Joukhador v Network Ten Pty Limited [2020] FCA 746 Loder v Bolton [2020] NSWCA 45 Lord McAlpine of West Green v Bercow [2013] EWHC 1342 Monroe v Hopkins [2017] EWHC 433 Nationwide News v Hibbert [2015] NSWCA 13 Schenck v. United States, 249 U.S. 47 Sube and another v News Group Newspapers Ltd and another [2018] EWHC 1234 The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514 Trkulja v Google LLC (2018) 263 CLR 149
Texts Cited:	Defamation Costs Working Group 2013: Final Report Professor E Goldman, “Emoji Law 2018 Year-in-Review” R Smyth, “What do Trial Judges Cite?”, Evidence from the New South Wales District Court" [2018] UNSWLawJl 9
Category:	Procedural and…