Lehrmann lawyer’s next move in ‘zipper-mouth face’ emoji defamation case

Zali Burrows, the Sydney lawyer acting for Bruce Lehrmann in his defamation appeal and criminal case, has avoided having her own defamation case against a fellow lawyer thrown out by a NSW court.

In a case over an emoji that appears to be an Australian first, Burrows launched defamation proceedings in the NSW District Court in 2020 against high-profile criminal lawyer Adam Houda over two posts on Twitter, now known as X.

Adam Houda, Zali Burrows and the zipper-mouth face emoji at the centre of Burrows’ defamation suit. Credit: James Brickwood, Kate Geraghty, Monique Westerman

The first tweet linked to a 2019 article in The Sydney Morning Herald without providing commentary.

When another Twitter user noted the date on the article and asked what had happened to Burrows since that report, Houda replied in May 2020 with a “zipper-mouth face” emoji.

Burrows has alleged the tweets conveyed a range of false and defamatory claims, including that she “so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action”.

High-profile criminal lawyer Adam Houda, pictured in 2015.Credit: Nic Walker

Houda asked District Court Judge Judith Gibson, one of Australia’s leading defamation jurists, to dismiss the case summarily this year, meaning before any trial, owing to lengthy delays by Burrows.

In a decision this month, Gibson noted there had been considerable delay but that Burrows had provided an explanation including her own ill-health.

“The plaintiff’s health problems have clearly taken a great toll not only on her physical health but in terms of her ability to get things done,” Gibson said.

“While I accept that she has been conducting matters in other courts, including defamation proceedings in the Federal Court, that does not mean that she is necessarily giving her full and efficient attention to her own defamation action.

“A saying that I recall used to be favoured by one of the more colourful members of the criminal bar, in times of crisis, was that ‘the cobbler’s children are the worst shod’. That appears likely here.”

Burrows’ reprieve

Gibson concluded that Houda’s application for summary dismissal of the case was “premature” but said it should “not … be dismissed, so it has been stood over generally over the period up to the trial”.

She said she had offered the parties a five-day trial starting on September 1, “noting that the case could go into a second week if necessary”.

Gibson said Houda’s application to “strike out the proceedings … is deferred”, pending Burrows’ compliance with orders relating to the progress of the case, including the production of documents by April 4.

The tweet by lawyer Adam Houda on May 27, 2020.

The judge struck out a separate application by Burrows, which sought to have the case transferred to the NSW Supreme Court as the first step to having it transferred to the Federal Court.

‘Hieroglyphic-style languages’

Gibson said in a preliminary judgment in 2020 that Burrows’ lawsuit “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”. She concluded it was reasonably capable in the context of conveying a defamatory meaning.

“One of the main changes to online writing style has been the introduction of two new-age hieroglyphic-style languages: emoticons and emoji,” Gibson said.

“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 ... 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.”

Gibson said the zipper-mouth face emoji meant “‘a secret’ or ‘stop talking’, in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer”.

Houda, who has filed his own Federal Court defamation case against Sky News Australia over comments he says accuse him of antisemitism, has until April 24 to amend his defence in the Burrows case.

The Lehrmann litigation

Burrows is acting for Lehrmann in his appeal against Federal Court Justice Michael Lee’s decision dismissing his multimillion-dollar defamation case against Network Ten and journalist Lisa Wilkinson over an interview with his former colleague Brittany Higgins.

Lehrmann is challenging Lee’s finding on the balance of probabilities that he raped Higgins in 2019 in the Parliament House office where they both worked for Liberal Senator and then defence industry minister Linda Reynolds. He has always maintained his innocence.

Lehrmann is facing separate rape allegations in Queensland, and is also being represented by Burrows in those proceedings. The former Liberal staffer was last year committed to stand trial over allegations he raped a woman he met at a Toowoomba nightclub in 2021. He denies the allegations.

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