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February 17, 2023

Em😊jis and the Law: The New Digital Language, Coming to a Courtroom Near You

By: Suzy St. John

Gone are the days when we thought emojis were nothing but a fun and easy way to express ourselves in the digital age. The ubiquity of emoji usage and inherent ambiguity that goes with it can lead to misunderstandings with legal consequences. During the AJEI Summit, Panelists Professor Eric Goldman, Associate Dean for Research, Professor of Law, and Co-Director of the High Tech Law Institute, at Santa Clara University School of Law, and Hon. Stephanie Domitrovich, a veteran trial judge in Pennsylvania state court, did a deep dive into emojis during a breakout session moderated by Hon. Robert J. Torres, Jr. and Hon. Colleen O’Toole.

The session began with an audience poll asking how often we use emojis and about everyone confessed to occasional usage. When asked what source we would consult to find an emoji’s meaning, the top answer was Google followed by asking children or grandchildren. Around 80% of the audience reported they had never had a case involving emojis.

Wearing a one-of-a-kind button-down shirt covered in emojis, Professor Goldman promised that percentage would increase in coming years. “No matter how specialized your court,” he said, “emoji evidence is coming for you.” To prepare, judges and lawyers need to know what emojis are and how misunderstandings can happen.

Depiction Diversity

The Unicode Emoji is what we think of when we think of the typical emoji. They are colorful cartoon-like pictographs that are usually the same size as the accompanying text. Unicode Emojis are standardized in that each emoji graphic (or “glyph”) has been assigned a unique numerical value. But there is no standardization for how the glyph of a Unicode Emoji is depicted in each operating system, software program, or device. Thus, each platform can depict the glyph of a Unicode Emoji however it sees fit.  

This results in “emoji depiction diversity,” a phenomenon of which a large chunk of the population is unaware. It means the emoji graphic that the sender sees using one device does not look identical to the emoji graphic the recipient sees using a different device. When an emoji is transmitted across different platforms, each platform translates the glyph differently.

Besides changing across platforms, emoji depictions also change over time within platforms. An example is the grinning-face-with-smiling-eyes-emoji. The graphic below shows how that emoji has changed within each operating system over time (vertically with oldest image on bottom):

Older versions of the grinning-face-with-smiling-eyes-emoji are on bottom, newer versions are at the top

Older versions of the grinning-face-with-smiling-eyes-emoji are on bottom, newer versions are at the top

Using the two images from the Apple example (above, far left), researchers asked people what the emoji image on the top meant, and the answer was “blissfully happy.” But when they asked what the emoji image beneath it meant, the response was “ready to fight.”

Thus, imagine using a modern version of Apple iOS and sending the grinning-face-with-smiling-eyes to someone to convey that you are feeling blissfully happy today. The recipient, on the other hand, is running an older iOS and suddenly left wondering why you want to fight them. Et voilà, legal shenanigans ensue. “Everyone can be acting reasonably, yet they’re getting very different messages,” Professor Goldman said. The point was made. Emoji-related legal issues develop because the sender and the recipient misunderstand each other but nobody did anything wrong.

Intra-platform depiction diversity played out differently in a recent sexual harassment case. An employee sued her employer, claiming she received sexually explicit text messages from a supervisor. But the screenshot the employee provided in discovery included a text message depicting a version of the smiling-face-with-heart-eyes emoji (😍) that did not yet exist on the operating system running on the employee’s iPhone 5. That led to the lawyers discovering the employee had fabricated the messages and, in a not-so-shocking twist, the lawsuit was dismissed.

Inherent Ambiguity

The other factor that can cause misunderstandings is every emoji is born with inherent ambiguity, and often that is intentional. In fact, Unicode prefers to only adopt emojis that have multiple meanings. An example is the person-with-folded-hands emoji (🙏). It means high five, namaste, prayer, please, and thank you. Adding to the ambiguity is when platform-specific slang develops for a particular emoji. To audience laughter, Professor Goldman asked if anyone had ever used the peach emoji on the iPhone to mean fruit. The catch, though, is someone may not know the slang meaning of an emoji unless they are familiar with the operating system on which the slang developed.

Emoji slang also develops along geographical, cultural, and linguistic lines. A thumbs up (👍) in certain cultures means emphatically no. Grammar issues also abound. Emojis can perform different grammar functions in a sentence or conversation. Then, there are emoji sentences that have only emojis and no text; these can be difficult to interpret with no shared grammar for emojis. Should a sequence of emojis be read from left to right or right to left? Or is it to be read as one unit? According to Professor Goldman, if you think an emoji sentence must be read a certain way, you are thinking about it the wrong way.

Judicial Interpretation

Judge Domitrovich explained the role of the judge in emoji interpretation. Once an emoji is in the record, the judge examines the circumstances to interpret the communication, including evaluating any accompanying text and whether the emoji materially alters the intended meaning of the message. The context and the community matters, Judge Domitrovich said.

Summarizing notable court opinions interpreting emojis, Judge Domitrovich pointed to an appellate court opinion with a footnote saying that the upside-down-smiling emoji (🙃) means passive aggression, citing A different court in Australia considered whether using the zipper-mouth-face emoji (🤐) could be defamatory. In a footnote, the Australian court said this emoji implies the sender knows something they are forbidden or reluctant to say, citing Emojipedia, another online source.

These cases provide a cautionary tale about relying on online sources to discern an emoji’s meaning. Though online sources are not useless for interpreting emojis in court cases, Judge Domitrovich and Professor Goldman impressed upon the audience to recognize the limits of those sources. “Emojipedia is fabulous,” said Goldman, “but it’s just basically one dude who’s writing this.”

The evidence a judge needs to interpret an emoji’s meaning depends on the emoji and the circumstances surrounding it. Expert testimony might help sometimes. But testimony from the parties is always vital. Someone should ask the sender: What did you mean when you sent that emoji in that message?

Some Takeaways

Professor Goldman and Judge Domitrovich closed their presentation with these kernels of wisdom for dealing with emoji evidence in court.

Emoji depictions come in pairs. Emojis change in appearance over time and across different platforms. Judges should always find out how the emoji appeared to both the sender and the recipient. Unless judges know how the emoji looked to the person who sent it and to the person who received it, they will not be looking at the right evidence.

Context matters. Emojis should not be viewed in isolation but interpreted considering the rest of the message. Emojis also deserve equal treatment in the conversation. If you focus only on the text, you could miss the point of the message because an emoji can change the entire meaning. And emojis can perform many distinct functions, even within the same sentence.

Please show us the emoji. As a final plea, Professor Goldman asked that appellate judges please show the emoji in the opinion. Only about 10% of court opinions interpreting emojis include an image of the relevant graphic. Although emojis may not be visible on the version available through LexisNexis or Westlaw (platform depiction diversity, you see), they will be visible in the original pdf. And extra 👏🏆🏅 to opinions that include both emoji depictions—what the sender and recipient saw.

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Suzy St. John

Indiana Public Defender Council

Suzy St. John is a staff attorney at the Indiana Public Defender Council and works as an appellate public defender in her free time. She has been an appellate practitioner for over a decade and has litigated hundreds of cases in Indiana’s state appellate courts.