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Mixed Messages: Courts Grapple With Emoticons and Emoji

Posted in Litigation

smile_iconiStock_000047419566_SmallEmoticons—such as :-)—and emoji—such as 樂—are ubiquitous in online and mobile communications; according to one study, 74 percent of Americans use emoticons, emoji and similar images on a regular basis.

Given their popularity, it comes as no surprise that courts are increasingly being called upon to evaluate the meaning of emoticons and emoji that are included in material entered into evidence, an exercise that has highlighted just how subjective—and fact-specific—interpretations of these symbols can be.

For example, in a opinion last year dismissing a male law school student’s suit against local police and a female classmate for having the male student formally investigated based, at least in part, on text messages that he had sent, a federal district court in Michigan held that the male student’s text messages showed that he may have had an intent to harass the female classmate despite “the inclusion of the emoticon, a ‘-D,’ which appears to be a wide open-mouth smile.” The court held that the emoticon “does not materially alter the meaning of the text message,” in which the male student otherwise wrote that he wanted to do “just enough to make [the female student] feel crappy.”

On the other hand, in a separate case, also arising in Michigan, the Michigan Court of Appeals held that the ‘:P’ emoticon accompanying a comment allegedly accusing a city worker of corruption made it “patently clear that the commenter was making a joke.”

Here are some other notable instances in which emoticon and emoji were among the evidence courts were asked to evaluate:

  • In sexual harassment case brought by the female co-CEO of a Delaware corporation against her partner, opinion issued last summer, the Delaware Chancery Court held that a “smiley-face emoticon at the end of [the defendant’s] text message suggests he was amused by yet another opportunity to harass the plaintiff.
  • In the January trial of a California man accused of operating a black market called Silk Road over the Internet, the judge instructed the jury members that they should take into account the emoji included in the social media posts and other electronic communications submitted into evidence, stating that the emoji are ”part of the evidence of the document.” (The defendant, Ross Ulbricht, was ultimately convicted of all seven of the counts he faced; the government’s evidence that he ran “Silk Road’s billion-dollar marketplace under the pseudonym the Dread Pirate Roberts was practically overwhelming.”)
  • In a petition for certiorari by Anthony Elonis, a Pennsylvania man whose conviction for posting threatening status updates to Facebook was ultimately overturned by the U.S. Supreme Court last year, Elonis cited his inclusion of the emoticon “:-P” several times as part of his arguments that: (1) he lacked the intent required for conviction; and (2) his posts were easily misunderstood and communications that are subject to misunderstandings shouldn’t be criminalized. Holding that “Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal con­duct requirement of “awareness of some wrongdoing,” the Supreme Court’s opinion didn’t mention emoticons at all, however.

Each of these decisions involved a court’s assessment of a lengthy set of facts, of course. Context clearly counts. The point is that, in the words of WIRED’s Julia Greenberg, “When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren’t being derided or ignored. Emoji matter.”

And interpreting them will continue to be a challenge for courts. Emoticons and emoji are often ambiguous, sometimes supporting the accompanying text, sometimes undermining it. A smiley face with a tongue sticking out that accompanies a message purporting to confirm a deal could indicate the sender’s happiness that the deal has been concluded, or it could indicate that the sender’s purported confirmation is a joke.

Further complicating the interpretation of emoji is the fact that the same emoji character will have a different appearance when viewed on different platforms. For example, the popular “grinning face with smiley eyes” emoji that, say, a Microsoft platform user sees is not identical to the “grinning face with smiley eyes” emoji that, say, a Google platform user sees—even if the emoji was sent by the former to the latter. Moreover, a recent study found that the differences in an emoji’s appearance across platforms can result in different emotional responses to the emoji based on the platform from which it is viewed. As a result, a court seeking to interpret an emoji will need to determine in each situation which version of the emoji to consider: The version that appeared to the sender of the communication at issue or the version that appeared to the recipient of that communication?

It’s been said that one shouldn’t send a message that he or she wouldn’t want to see on the front page of the New York Times. I’d like to suggest a corollary rule: If you want a message to be free from ambiguity, don’t include an emoticon or emoji in the message.