JUNE 2019 | AROUND THE ABA

#WhyYouShouldCareAbout emojis😊, emoticons :) and hashtags

While emails and texts have been common forms of evidence during trials for more than two decades, emojis, emoticons and hashtags are just now starting to make their way into the world of litigation, said attorney Courtney Fong, who served as moderator for the ABA webinar titled, “Emojis Speaking Louder than Words? The Import of Emojis, Emoticons and Hashtags as Evidence at Trial and Beyond #:).”

Fong is the chief legal officer and chief privacy officer of Chicago-based The Computing Technology Industry Association (CompTIA). He was joined by fellow attorneys Kandis Kovalsky and Edward Kang, both of Kang Haggerty & Fetbroyt LLC in Philadelphia.

There are more than 3,000 emojis today and research shows that 92 percent of people online use emojis and one-third of them use them daily.

It is no wonder that emojis and hashtags are increasingly appearing in lawsuits, particularly federal employment discrimination ones, Kang said, noting that emoji mentions in these suits jumped in number from six in 2016, to 12 in 2017 and 57 last year.  As of March, there already are 22.

Emojis have most often been used by employers to defeat employee claims of harassment and wrongful termination,” Kang said. “But they can also be used by employees to support their claims.”  Indeed, since 2010, employees have filed at least 39 federal discrimination, harassment or retaliation lawsuits that include emojis or emoticons in their allegations.

#CleanedUp has accelerated relevance of these tools of social media. The Twitter movement began in March 2017, removing the clutter in citations and establishing a new parenthetical for citing legal authorities to indicate the removal of extraneous brackets, ellipses or nested quotations.

Kovalsky said #CleanedUp has been used by judges in opinions in six U.S. Circuit Courts of Appeals; Supreme Court filings, every federal appellate court and many federal district courts and state courts across the country, as well as in many law reviews.

Chief Justice John Roberts is credited with the first use of a hashtag in a Supreme Court opinion, when he commented in 2018 Minnesota Voters Alliance et al. v. Manskyet case, which challenged the state law prohibiting voters from wearing clothing or items considered political while voting.

Said Roberts: “Would a ‘Support Our Troops’ shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a ‘#MeToo’ shirt, referencing the movement to increase awareness of sexual harassment and assault?” The court ruled that hashtag activism clothing is permitted while voting.

Kovalsky said lawyers have an ethical duty of technology competence and pointed to the 2012 update of the ABA Model Rule of Professional Conduct 1.1 Comment 8, which was modified emphasizing that lawyers should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology in one’s area of practice. “The change incorporated emojis and social media,’’ said Kovalsky.

Emojis, emoticons and hashtags have added another dimension to the way we communicate and they are here to stay, Fong said. And the courtroom is no exception. So, lawyers must be willing to adapt to and embrace changing times. In other words, doing so can either leave you with a 😊 or leave you ☹!

“Emojis Speaking Louder than Words? The Import of Emojis, Emoticons and Hashtags as Evidence at Trial and Beyond #😊” is sponsored by the ABA Section of Science & Technology Law.

MORE: Emojis present challenges in discovery

Edward Kang of Kang Haggerty & Fetbroyt LLC in Philadelphia says that emojis can present certain challenges in discovery.

Among reasons, emojis are difficult to search for given the volume of electronically stored information.  How they are rendered from one device to another may vary, as these images may be different according to operating system.

Additionally, it can be difficult to decide how emoji evidence should be presented at trial and to the jury. “Say for example that a text is read to the jury and the emoji is omitted,” Kang explained, “then the jurors will miss out on important context and be denied the opportunity to grasp the sender’s intent fully.”

The program is available to ABA members on demand.

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