Does the “collision” emoji 💥 represent a celebratory firework—or the threat of a gunshot?
Can the “handshake” emoji 🤝 convey the sender’s contractually binding acceptance of preceding terms?
The judges and lawyers who must answer these questions are a bit like Latin-speaking monks seeking to understand modern graffiti. They will help the legal system adapt to include the proliferation of emojis in today’s digital communications. But first, lawyers must increase their visual literacy to understand how to apply literal meanings to emojis and other digital representations of language.
Here’s a look at the unique interpretive challenges emojis present and five questions that can help you determine their meanings.
Emojis in the Courts
As of September 2020, there were 3,521 emojis in the Unicode Standard. Additional colorful and detailed images are released every year.
Initially appearing as the more sedate set of emoticons, e.g., :-) and ;-P, more and more emojis today (along with their cousins, the memes) are infiltrating our digital and online communications.
Eric Goldman, the leading researcher on emoji law, reports that his caselaw tally shows 132 cases referencing emojis or emoticons in 2020, a 25% increase from 2019, which itself had seen a near doubling from 2018. Goldman says, “The most common emoji case involves sexual predation of children. Other common cases include murder, discrimination, and harassment.”
Lawyers, Judges Argue Over Meanings
Lawyers have argued the meanings of emojis, and judges ultimately determined their legal impact, on a case-by-case basis.
For example, in a 2014 federal district court case, a University of Michigan student sent a friend a text that said he wanted to make a classmate “feel crappy” and experience “deep dark pits of depression.” He claimed that his inclusion of the “laughing” emoticon :-D altered the text’s meaning. The judge disagreed, ruling that the emoji “does not materially alter the meaning of the text message.”
Conversely, in June 2015, the U.S. Supreme Court overturned the conviction of a Pennsylvania man found guilty of threatening his wife via Facebook. The court agreed with the defendant who claimed that an emoji in one post meant his threats of harm against his ex-wife weren’t serious.
In an Israeli small claims court case, Dahan v. Shakaroff, a couple interested in an apartment sent the landlord a text that included the emojis of a smiley face, a comet, a champagne bottle, dancing Playboy bunnies, and a chipmunk. 😊 ☄️ 🍾 👯 🐿️
Believing the couple agreed to rent the apartment, the landlord rejected other applicants and took it off the market. When the couple stopped responding to his messages, he sued.
The court found that “the sent symbols support the conclusion that the defendants acted in bad faith,” signaled enough positive intent, and ordered the couple to pay one month’s rent.
Interpretive Challenges with Emojis
Emojis present a number of interpretive challenges as interpretations are context-dependent on multiple levels. For instance, in Dahan, the would-be renters and the landlord were introduced by a mutual friend, a type of social connection that may inspire more casual communications. Also, an emoji may mean one thing on Twitter, yet have an alternate meaning when it appears on Instagram.
Emojis can have metaphorical meanings, as do the “fire” 🔥 and “locked with key” 🔐 emojis. Interpretations can vary by culture, region, or community.
Online communities can assign covert meanings to emojis. For example, a hand with the thumb and forefinger touching and the other fingers pointed up forms the letter “b,” the symbol of a specific street gang. Lawyers may present expert testimony to explain meanings that aren’t readily apparent.
To further confound matters, systems and platforms display emojis differently. The same emoji may vary in size, color, shape, and level of detail depending on whether it’s viewed on a Windows or a Mac PC, an Android phone, or an iPhone.
How Lawyers Can Learn to Interpret Visual Language
“Seeing” is a muscle that you can train, just as you learned to read words. The more you learn about visual language and hone your observation skills, the easier interpretation becomes.
With most legal questions, you can apply a series of five “what” questions:
- What do I see in the image? Can I put a name to what I see?
- What does the emoji remind me of? An emotion? A personal experience?
- What does my client think it means? Why?
- What do counterparties and third parties think it means? Why?
- How does context apply?
There are resources you can turn to for input. The Unicode® Consortium standardizes emojis for global computer compatibility. The UC decides which new emojis to publish, naming each with descriptors such as “smiling face with smiling eyes” and “nauseated face.” The UC also maintains an emoji list that includes additional keywords for each emoji.
Once you’ve come to a reasonable meaning of an emoji, you can ask: “What is the significance of this meaning in this context?”
For example, if you were to Google the fire emoji to find contextual meanings, searching for “Fire emoji meaning” comes with autofill suggestions that include: Fire emoji meaning from a guy; fire emoji meaning from a girl; fire emoji meaning snapchat; and fire emoji meaning drugs.
Visual literacy is different from, but not necessarily more difficult than, learning the meanings of written words. As digital communications increasingly bring visual language into vogue, lawyers who can interpret both words and images will become modern language leaders.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. She focuses on improving and shaping the future of law, having led for decades as a general counsel, operations professional, startup adviser, public speaker, adjunct professor, and entrepreneur.