What began as a playful addition to our email, text messages, and social media posts has, in recent years, made its way into the courtroom, sparking debate on the intersection of modern technology and the law. Emojis, the unassuming yet ubiquitous pictographs, are small, yet expressive icons that have begun to play a consequential role in legal proceedings, raising critical questions about their interpretative significance. This article explores the landscape of emojis in the law, shedding light on their potential implications, challenges, and the new dimensions they bring. 🤩
Emojis can enhance communication and build friendly work and business relationships, not to mention the smiles (or frowns) they add to human interaction, but they should be used judiciously and appropriately in a professional setting. They can be ambiguous, and easily misinterpreted, especially the ones whose meanings are not well known. Special consideration should be given to the context in which the emoji is used because many emojis have multiple meanings. Sometimes, the recipient of the emoji and the sender do not share the same meaning of the emoji they use. This can lead to confusion and misunderstanding. Many emojis are double entendres, for example, many emojis may represent an innocent fruit or vegetable, but may also represent body parts or have sexual meanings, i.e., eggplant, donut, melons, peaches, etc. See A Parent’s Guide to Sexting Emojis for a sexting emoji meaning chart. Lawyers should recognize the significant influence of emojis in bolstering or defending a case.
In 2022, Adobe conducted a survey of 5,000 U.S. emoji users to uncover the important role and impact of emojis in digital communications. The survey found that 🤠, 🍒 , and 🙃 are the most misunderstood emojis. Half of U.S. emoji users use emojis differently than their intended meaning (50%). Gen Z emoji users are significantly more likely to agree they use emoji differently than their intended meanings (74% vs. 65% Millennial, 48% Gen X, 24% Boomer). Nearly half of U.S. emoji users have sent an emoji that was misinterpreted or taken out of context (47%). 80% of U.S. emoji users agree you should only use emoji you fully understand the meaning of in conversations. 80% of U.S. emoji users feel up to date on the latest emoji meanings. This is especially true for Gen Z (93%). This data illustrates how the interpretation of emojis can vary depending on the intent of the sender, the context, and the audience. There also seems to be statistical evidence of a generational difference in usage and interpretation.
Of course, Courts have been interpreting nonverbal communications such as symbols, gestures, and facial expressions (even silence) for years. Sometimes, a person’s body language is louder than words or contradicts the words they convey. Emojis are no different. They are just a form of digital communication conveying meaning. Below are several examples illustrating the growing influence of emojis and a few courts’ interpretations of these playful symbols of communication.
South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (July 2023). In this case, the Canadian Court applied the longstanding law governing contracts, whether parties have manifested their intention to be legally bound to a contract. The issue here was not what the parties subjectively had in mind but whether a reasonable person would conclude that they intended to be bound. In the ruling, the Canadian Court stated that under the circumstances of the case, the thumbs-up emoji (👍) was an objectively reasonable way to sign a contract, creating a legally binding agreement. It should be noted that the parties had a history of communicating by emojis.
Before expressing shock and awe at this ruling, here is what Professor Corbin’s treatise on contracts has to say on the matter:
There are different modes of expressing assent. Expression may be by the tongue, the eye, the hand, or by all of them at once. It may be by language, by words in any language, by words written or spoken. Yet there is also “sign language,” which may consist of signs that are mere translations from a language of words, or of signs that convey ideas independently of any word language. . . The language used to express assent, whether of words or of other signs and symbols, may be one invented by the parties themselves for their own private communications, or, indeed, for one communication only. They may use code words instead of English words or their own code, or the Morse code, or the Western Union telegraphic code. They may twist ordinary English words into code words, so that man signifies dog and tree signifies a thousand bushels of wheat. . . Throwing up one’s hat is usually an expression of joy, but it may be made to express assent to an agreement to sell land for ten thousand dollars.
Corbin on Contracts § 1.19 (Perillo rev. ed. 1993).
Indeed, this approach has been codified in the UCC: “Unless otherwise unambiguously indicated by the language or circumstances (a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances. . . ” UCC § 2-206. Offer and Acceptance in Formation of Contract. This particular language has also been codified in the Maryland Commercial Code with modifications: “Unless otherwise unambiguously indicated by the language or the circumstances: “An offer to make a contract invites acceptance in any manner and by any medium reasonable under the circumstances. . . (4) If an offer in an electronic message evokes an electronic message accepting the offer, a contract is formed: (A) When an electronic acceptance is received. . .” See MD Code, Commercial Law, § 22-203.
Maryland has also adopted the Uniform Electronic Transaction Action (UETA). The UETA provides that electronic communications are sufficient to satisfy any statute requiring a contract to be in writing. Therefore, emails and text messages, which may seem casual, unofficial, or unenforceable, are enforceable under the UETA.
Prosecutors always gather evidence such as writings, statements, or actions that suggest the defendant had the requisite intention to commit a crime. Likewise, they will look at a defendant’s text messages and social media with or without emojis, sifting for evidence. Two cases listed below illustrate the use of emojis in criminal cases.
State v. D.R.C., 467 P.3d 994, 13 Wn. App. 2d 818 (2020), involved the prosecution of a juvenile based on text messages that she sent to her friends indicating she wanted to kill her mother. Although the text messages were threatening, the same text messages incorporated multiple smiling emojis (🙂), which seemed to contradict her written words. The Court held that the text messages were not sufficient to prove a true threat, in part because of the contradiction of the smiling emojis, and reversed the judgment. The emojis, in this case, exonerated a criminal defendant and provided context to the written messages. Had the defendant used a knife, sword, ax, or pistol emoji (Apple removed the gun emoji, but there is a pistol emoji that looks like a water gun), the Court may have interpreted her text messages as a real threat to kill her mother and sustained the judgment.
There have been other reported cases where an emoji helped convict a criminal defendant. See U.S. v. Swanagan, 2023 U.S. Dist. LEXIS 13419 (W.D. Ky. Jan. 2, 2023) (Court upheld a search warrant based upon law enforcement’s interpretation of the defendant’s FaceBook posting of a water emoji (💦) as drug slang for methamphetamine in drug trafficking communications. The defendant argued the water emoji meant sex, not methamphetamine.
In the case of In re Bed Bath & Beyond Corp., 2023 U.S. Dist. LEXIS 129613 (D.D.C. July 27, 2023), the Court considered whether a tweet with a full moon face emoji (🌝) was meant to convey a message that the Bed Bath & Beyond Stock was “going to the moon” or rising in value. After the tweet, the stock rose in value, and the tweeter sold the stock, making millions of dollars. The Court stated, “Emojis may be actionable if they communicate an idea that would otherwise be actionable. A fraudster may not escape liability simply because he used an emoji. Just like with words, liability will turn on the emoji’s particular meaning in context.”
In Friel v. Dapper Labs, Inc., 21 Civ. 5837 (VM), 2023 WL 2162747, at *1 (S.D.N.Y. Feb. 22, 2023), a rocket ship, a stock chart depicting upward trends, and a money bag emoji (🚀, 📈 , 💰) was cited by a district court judge considering a motion to dismiss. The Court analyzed whether the transaction was an investment contract under federal securities law. U.S. District Judge Victor Marrero found that the use of these emojis signaled to investors that they would receive an upward financial return on their investment, thus satisfying the expectation of profit prong of the securities test.
Sexual Harassment Cases
In Mosley v. Preston Cycles West, LLC, No. 19-3937, 2021 WL 4815901 (N.D. Ga. July 30, 2021) the supervisor sent text messages to the plaintiff with an eggplant, peach, dinner plate, and dripping water emojis. All of these emojis have a double meaning, invoking sexual content. In sexual harassment claims, courts are looking at the severity, pervasiveness, and frequency of the conduct. Here, the court ruled the severity and frequency of the conduct was limited and dismissed the claim.
In Herman v. Ohio Univ., No. 2:19-cv-201 U.S. Dist. LEXIS 202806 (S.D. Ohio Nov. 22, 2019), the Court considered a winking emoji (😉) sent to the plaintiff in a text message, along with other communications, in a ruling on the university’s motion to dismiss. The Court determined that the emoji, in conjunction with the other communications, was part of the totality of circumstances used to determine whether the communications were severe enough to create a hostile work environment. As a result, the Court denied the university’s motion to dismiss and found that the communications, including the emoji, supported a sexual harassment claim.
Emojis are increasingly being used to convey meanings. Lawyers and judges have to interpret the intended meanings of emojis in court cases, which can be challenging due to their ambiguity. Lawyers must increase their visual literacy to understand how to apply literal meanings to emojis and other digital representations of language.
Courts have been asked to interpret symbols, contracts, and other content over the centuries, even nonverbal cues like shakes of the head or winks. Interpreting emojis is no different. However, emojis’ meanings are not uniform and can mean different things to different people. In addition, an emoji on an iPhone may not look the same on a Samsung phone, etc. Emojis can form contracts when subjectively, no contract is intended. Emojis can also land you in jail, or be a critical factor in a sexual harassment case or other lawsuits. For all these reasons, organizations may need to train their employees that not all emojis may be appropriate in workplace communications. This includes establishing a policy on appropriate methods of communication.
The legal profession is increasingly being asked to deal with the interpretation of digital wordless communications. If you have a case involving the interpretation of an emoji, you may want to look at Eric Goldman’s spreadsheet listing reported cases involving emojis. Mr. Goldman is an Associate Dean for Research and Professor of Law at Santa Clara University School of Law and has frequently written on this topic, click here for his spreadsheet and articles. See also Leslie Y. Garfield Tenzer & Ashley Cangro, AN EMOJI LEGAL DICTIONARY, University of Pittsburgh Law Review Online, Vol. 83, 2022. Garfield and Cangro did an excellent job of trying to provide a “legal emoji dictionary” by reviewing over 100 cases to provide context and definitions of emojis as interpreted by courts. Bye now! 👋