How to Handle the Increased Prevalence of Emojis in Litigation

While an emoji’s meaning may be clear to the sender, it is by no means universal. As the Supreme Court of Virginia explained, “it has been noted that emojis can have significant variations in meaning according to the ‘dialect’ used by the sender.” Commonwealth v. Murgia, 297 Va. 310, 315, 827 S.E.2d 377, 380 (2019) (citing Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227, 1251 (2018)). This is significant given that the use of emojis can completely alter the meaning of the text.  For example:

Compare the following pairs of statements:

• “I’m not sure why the regulators were here today. We are in strict compliance with all statutory and regulatory requirements.”
• “I’m not sure why the regulators were here today. We are in strict compliance with all statutory and regulatory requirements 😂🤐."
• “We signed the contract yesterday afternoon.”
• “We signed the contract yesterday afternoon 🤞 ”

While ambiguity can creep into even the most mundane written passages, straightforward language will generally have a commonly understood meaning. Adding non-textual components to otherwise innocuous text creates an entirely new set of cues or interpretative signs that can fundamentally change the meaning of a statement.  And the trouble is, there is no way to understand the sender’s meaning in including the non-textual component.  This creates real problems for litigators, especially given the increased use of business messaging platforms that support emojis. See Gabrielle Pickard-Whitehead, 30 Instant Messaging Apps your Business Could Use, Small Business Trends (Aug. 21, 2019). For instance, instant messaging platforms like Skype and Slack allow employees to communicate in real time and, often, with decreased formality an increased (albeit false) sense of privacy.  Litigators are therefore more likely than ever to come across emoji evidence. Eric Goldman, 2019 Emoji Law Year-in-Review (Jan. 23, 2020)(explaining that in 2019 he found 101 cases referring to “emoji” or “emoticon,” which was nearly double the number from 2018).

Because an emoji’s meaning differs depending upon the sender and the context, litigators need to be prepared to present testimony regarding their meaning. See Commonwealth v. Murgia, 297 Va. 310, 315, 827 S.E.2d 377, 380 (2019) (noting that no testimony was presented regarding the significance of the emojis included in key communications); Ukwuachu v. State, No. PD-0366-17, 2018 WL 2711167, at *6 (Tex. Crim. App. June 6, 2018), reh’g denied (July 25, 2018) (same). This adds a layer of complexity to the evidence required in some cases. The new challenges include, among others:

• Educating jurors, particularly less sophisticated or older jurors, about what emojis are and why they are used;
• Eliciting testimony to explain the intended meaning of an emoji in a clear and convincing way; and
• Evaluating witness credibility in explaining the meaning or use of an emoji, particularly if that explanation is contrary to a commonly-understood use or meaning.

Likewise, litigators need to be prepared to deal with conflicting interpretations among the conversation’s participants. For example, “🤞” could be sent to mean “keeping my fingers crossed” or “hoping for the best,” but could be interpreted as meaning that the sender is telling a lie. Similarly, “👌” could be sent meaning “exactly” while the receiver could interpret it to mean “good.” See Eric Goldman, Emojis Have Unsettled Gramar Rules (and Why Lawyers Should Care), Technology & Marketing Law Blog (Sept. 5, 2019). This new-age “he said, she said” issue could not have been anticipated just a few years ago. But it is a real issue today, and it is impacting an increasing number of cases.

Those possible diverging interpretations have led to an increase in the number and use of expert witnesses on the topic. Given the possible disconnect between the author’s intended meaning and the recipient’s interpretation, among other issues, practitioners should consider retaining an expert to support their position on an emoji’s meaning. Id.

Although emojis were initially designed to be lighthearted, simple, and informal communication tools, their impact on litigation may be both complex and damaging. Practitioners should therefore be mindful of the unique evidentiary and factual challenges emojis may present, and should consider how best to present their emoji-based evidence through both fact and potential expert witnesses.

Andrew J. Ennis is a shareholder and Catherine A. Green is an associate with Polsinelli PC in Kansas City, Missouri.

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