Emojis And The Law: Legal Issues Arising From The Use Of Emojis On Social Media

By Uchenna Umeano

THE CONCEPT OF WORDLESS COMMUNICATION

While wordless communication may seem like a development that came to be through the new and still-developing age of electronic communication, pictorial communication has been known to be in existence from as far back as the development of hieroglyphics.

Since the advent of social networking, wordless communication has blossomed with the use of:

• Emoticons (keyboard-generated)
• Emojis (software-generated)
• GIFs, stickers, memes and pictures

Computerized social networking continues to gain prominence in the courtroom and the diverse nature of case law springing up across the world indicates that the legal implications surrounding its use are limitless.

LEGAL IMPLICATIONS OF THE USE OF EMOJIS

Emojis have come to be an important way with which we express ourselves. They are increasingly recognized not merely as additions or ornaments to speech, but as a legitimate form of communication.

Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes – such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail.

Emojis have also begun appearing as evidence in court cases and are attracting judicial attention. The use of emojis clearly is on the rise, so also are the legal effects of its use in business and workplace communications and dealings.

1. EMOJIS AND CONTRACT FORMATION

Depending on the circumstances, using an emoji to respond to another party’s email or message may have the same effect as if precisely crafted words had been used.

Casually sending a thumbs-up emoji, a handshake emoji or even a smiley face in response to a message putting forth a proposal or offer to do business may be the same as stating, “I agree to your terms.” Likewise, sending a thumbs-down or a sad or angry-face emoji could be equivalent to a rejection of the terms put forward by the offeror.

At the minimum, replying to such a message with an emoji may convey contractual intent.

The popular 2017 Israeli case of Dahan vs. Shacharoff [Herzliya Small Claims Ct. Feb. 24, 2017] has been seen to foreshadow the future of emojis in legal and linguistic interpretation. Judge Amir Weizebbluth in his judgment stated:

‘The text message sent by the defendant… included a smiley, a bottle of champagne, dancing figures and more. These icons convey great optimism. Although this message did not constitute a binding contract between the parties, it naturally led to the Plaintiff’s great reliance on the Defendant’s desire to rent his apartment…These symbols which convey to the other side that everything is in order were misleading.’

The positive emojis signaled interest, according to the judge, and the landlord reasonably relied on the defendant’s ‘optimistic language’. The judge awarded the misled landlord damages of over 2,200 dollars.

2. EMOJIS AND DEFAMATION

Recent case law has shown that emojis can give rise to defamatory imputation.

In the Australian case of Burrows vs. Houda, [(2020) NSWDC 485], Houda made a tweet linked to an article in the Herald which reported a judge’s suggestion that Burrows’ conduct be referred to the Law Society for potential disciplinary action. One reply to the tweet stated ‘July 2019 story. But what happened to her since?’ Houda responded with a zipper-mouth face emoji.

The judge was satisfied that most social media users would make adverse assumptions about Burrows as the tweet conveyed a range of false and defamatory claims, including that she had been disciplined due to misconduct.

3. EMOJIS AND CRIMINAL INTENT

Emojis have been shown severally to denote motive and criminal intent.

If somebody sent you the following emojis in this sequence — ? ? ? —, those emojis might be interpreted as expressing the criminal intent to attack you and put you in the hospital. This was the exact message sent by two men taken into custody for stalking charges in South Carolina.

In a Massachusetts murder case, it was successfully argued that the defendant’s use of an emoji with Xs for eyes coupled with the nickname of the victim suggested a premeditated homicide and not accidental death as the defendant argued.

4. EMOJIS AND THREATS

Perhaps the most troubling use of emoji is where it is unclear whether they connote, modify or amplify a criminal threat.

In 2015, a New York City teenager was arrested for making terrorist threats after posting a Facebook status with a gun emoji pointed at the emoji of a police officer.

Also, in New Zealand, a judge considered the role of the emoji in a Facebook message sent by a man to his ex-partner. The man wrote, “you’re going to f***ing get it” along with an airplane emoji. Concluding that the message and emoji generally conveyed that the defendant was “coming to get” his ex-partner, the judge sentenced the accused to 8 months jail on a charge of stalking.

Emojis also feature in cases involving cyber bullying and harassment.

5. EMOJIS AND SEXUAL HARASSMENT

The sexual use of the eggplant, peach and sweat droplets emojis has now become common parlance, at least in Western cultures.

Such emojis may be deemed to constitute sexual harassment or even show consent, and such cases are particularly pervasive in employer-employee relations.

The red lipstick emoji became an issue in Stewart vs. Durham [3:16-CV-744-CWR-LRA (S.D. Miss. Feb. 9, 2017)], a California claim of sexual harassment where a female potential employee allegedly responded to sexually suggestive texts with a red-lipstick kiss emoji, raising the issue of whether the kiss implied that she welcomed his advances.

HOW COURTS ATTEMPT TO INTERPRET THE USE OF EMOJIS

Due to the recurrence of emojis in daily transactions, there has arisen the need to interpret these emojis in the determination of matters brought before the court and the court has made several attempts in this regard. In some cases, the context of the emoji may seem self-explanatory. In such cases, the court may only consider the meaning of the emoji used.

An example is the US case of Commonwealth of Pennsylvania vs. Foster [J-6-2019, (Pa. Aug. 20, 2019)], where a defendant on probation for a drug-related conviction raised the suspicion of his probation officer when he posted photographs depicting guns, drugs and money along with three pill emojis.

Most times, however, the interpretation and context of wordless communication is not always apparent and courts have to look to the surrounding circumstances to interpret the communication. This analysis generally includes recourse to directories like Emojipedia for the meaning of emojis. It also comprises scrutiny of the accompanying text and whether the emoji materially alters the intended meaning of the message.

At first glance, the emoji may seem innocent or harmless, such as a simple smile, wink or sad face used to communicate happiness, humor or sadness.  However, taken in the context or community in which the communication is used, the meaning may be interpreted differently in the eyes of the sender and/or recipient.

For example, in the 2014 US case of Ghanam vs. Does, [SC: 148726 (Mich. Dec. 23, 2014)], the court had to analyze the facts and circumstances surrounding a defendant’s use of the sticking out tongue emoticon within a communication in a defamation case.

Based on the hyperbole surrounding the emoticon, and the emoticon itself, the court found that the communication was a joke and negated the defamation claim in the defendant’s favor.

On the other hand, in 2019, in Commonwealth vs. Danzey, [Pa. Super. Ct. 2019], the Superior Court of Pennsylvania upheld the conviction of a defendant for stalking and harassment that was based in part on a social media post whose wording demonstrated the defendant’s state of mind, revealing his criminal intent, despite the words being accompanied by the common smiley face emoji.

PROBLEMS SURROUNDING THE INTERPRETATION OF EMOJIS

Communication is effective because the sender, through whatever medium, expresses an exact idea to the receiver which the receiver understands. It becomes highly problematic when the receiver is unable to interpret the idea the sender is trying to convey.

The problem with emojis is that the true meaning attributed to them may be vague, at best, or non-existent, at worst, depending on the circumstances surrounding their use. Since emojis are a form of wordless communication, it is not always certain that the meaning as intended by the sender is that which is understood by the receiver.

This is as a result of several factors. We shall examine some of them.

• Multiplicity and lack of consensus on the meaning of emojis

The interpretation of emojis is seriously hampered by the lack of a universal meaning. This is largely due to varying cultural opinions and geographical contexts. The hands-up emoji, for instance, means ‘praise’ in certain climes, but in China, it is offensive and means ‘stay away from me.’ The smiley face emoji is also often taken as expressing sarcasm in China and the thumbs-up emoji is considered offensive or vulgar in many countries in the Middle East. Yet, both are usually considered positive in most other countries.

• Cross-platform/OS discrepancies

Cross-platform/OS discrepancies are big problems as well in interpreting emojis. An example is the astonished face emoji. The image below shows the 2016 variations of the same emoji.

Google’s implementation is the third from the left and does not resemble the primary Unicode outline at all. As a result, recipients are not likely to interpret this implementation as “astonished.”

• Facebook Messenger’s implementation is the one in the middle with Xs as eyes, a depiction typically associated with death. A user receiving this emoji could take it as a threat.
• Samsung’s implementation is to the immediate right of Facebook Messenger’s, and it might be more associated with anger, shock, or annoyance than astonishment.
• While a lot has been done over the years across these platforms to unify their emoji implementations, there are still differences which need to be considered.

This particular problem is best illustrated in the hypothetical emoji equivalent of the confusion in the classic Peerless case [Raffles vs. Wichelhaus (1864) 2 Hurl. & C. 906].

In the course of contract negotiations, the sender responds to a contract offer with text that could be interpreted as acceptance but adds an emoji intended to send a mixed message of sarcasm. However, the recipient platform depicts the emoji differently and the recipient sees an emoji that does not communicate sarcasm in the same way.

Due to the cross-platform discrepancy, the recipient reasonably does not perceive the sender’s intended sarcasm, believes the sender accepted the offer, and detrimentally changes her position based on that belief.

Is there a valid contract? Can there be said to be meeting of the minds?

EMOJI FORENSICS

Emojis can no longer be excluded as evidence in courtrooms, given their penetration into everyday digital communications. They require special attention by both legal and criminal investigative practices and institutions.

Given the prevalence of cases involving emojis and the difficulty in interpreting the meaning, cultural contexts and intent behind emoji use, there has arisen the need for a specialized field that is recognized simply as “emoji forensics.”

The law should be a reflection of society and cannot operate outside of social constructs and norms. As such, law needs to expand to accommodate these technological advancements to aid judicial inquiry and case determination.

THE NIGERIAN CONTEXT

Unfortunately, this area of law is highly unexplored in Nigeria, as lawyers have not considered emojis important enough to warrant a forensic examination. Most lawyers lift out the text in social media communications and ignore all emoji references. As such, the attention of the Court has not been drawn to the impact emojis can have on written communication.

There is currently  no case law in Nigeria determining issues arising from emojis or their use in day-to-day transactions.

This vacuum in our law is quite gaping and needs to be filled. Lawyers can no longer avoid such questions of fact and the relevant applications of law.