How Many Lawyers Does It Take To Decide What Emojis And Emotocons Mean? -\_(:⎞) )_/
Chipmunks 🐿 🐿, Lipstick 💄 💄, Champagne Bottles 🍾 🍾 are Bones ☠️ 🦴 of Contention in Legal Disputes
What does the emoji known as the “unamused face” actually mean? Does the emoji with raised eyebrows and a frown really look “unamused”? 😏😏 Emojis are tiny pictures of facial expressions or objects used in text messages, emails and on social media. Today there are close to 3,000 emojis in the Unicode Standard. Over 10 million emojis are sent each day throughout the world—92% of all people who communicate online or through text messages use emojis, with more than a third of them using emojis daily. They are no longer a “laughing matter” for lawyers these days. Increasingly, they are bones ☠️ 🦴 of contention in lawsuits ranging from business disputes, sexual harassment, stalking and defamation.
In one Michigan defamation lawsuit, the meaning of an emoticon, an emoji-like image created with text characters from a standard keyboard, was up for debate. A comment on an Internet message board appeared to accuse a local official of corruption. The comment was followed by a “:P” emoticon. Judges on the Michigan Court of Appeals concluded that the emoticon “is used to represent a face with its tongue sticking out to denote a joke or sarcasm.” The court determined that the comment could not be taken seriously or viewed as defamatory or derogatory.
Puzzled lawyers across the country are turning to seminars, informal meetings and continuing legal education classes to discern innuendo in seemingly innocuous pictures of martini glasses 🍸 🍸 and prancing horses 🐎 🐎. Researchers at a law school in Melbourne, Australia, actually produced a 61-page study on the topic. With emojis sent from an iPhone to a non-iPhone operating system, the emoji sent can be quite different than the emoji received. This poses real interpretation problems for lawyers.
One employment lawyer in Washington, D.C., was stumped by a combination of emojis that included horses 🐴 🥧 and one that “looked like a muffin” in text messages associated with a sexual harassment case. After soliciting her colleagues’ opinions, her client told her it meant “stud muffin.” The client viewed the emojis as an extension of alleged un-welcomed sexual comments. The reality is that the use of emojis is limitless, and people will keep using their technology to “communicate” through pictures and symbols.
In 2018, emojis or emoticons were subjects of disputes in at least 53 federal and state court opinions. This was up from 33 in 2017, 25 in 2016, and 14 in 2015. One such case involved a producer in a dispute with her former business partner, a middle-aged man, who allegedly sent sexually explicit texts to a potential female employee. In one text, the potential employee responded with an emoji that depicts a red-lipstick kiss mark 💋 💋. The factual issue at trial was whether she approved of his advances or was politely trying to keep her distance. Lawyers asked the potential employee what she wanted to convey, but even her answer did not resolve the debate. It’s like the “crying smiling face” 😂 😂—is that laughing so hard that you’re crying, or is it something else?
In a 2013 legal battle between J.C. Penney Co. and Macy’s Inc. over the sale of Martha Stewart-branded products, then Penney CEO acknowledged during trial that he included a smiley face 😄 in an email in which he boasted about a deal to sell her products. Was this really necessary and what did he mean by it?
In Israel, a strange trial involved a couple looking for an apartment. They texted the landlord a series of emojis, including a smiley face 😄, comet 💫, a champagne bottle 🍾, dancing Play Boy bunnies 👯♀️, and a chipmunk 🐿. The landlord believed, based in part on the emojis, that the couple had agreed to rent the apartment. Relying on the emojis in the couples’ texts, he took down the for-rent listing, but then sued the couple when they stopped responding to his messages. A judge found in favor of the landlord, reasoning the couple had negotiated in bad faith and fined them a month’s rent as damages.
Certain emojis are easier to decipher than others. A consumer lawyer in Los Angeles said an email by insurance company executives, referencing his client, featured an emoji of a smiling piece of excrement 💩. The lawyer argued, the emoji represented what the insurance executives really thought—bemusing, “Are they saying what I think? And the answer is, yeah, that’s pretty much what they’re saying.”
The employment lawyer in D.C. believes this technology will continue to puzzle lawyers and parents alike. A recent text message received from her son brought home the dilemma—her son had sent her a picture of a mouse 🐭—the lawyer wasn’t sure what it meant, but “I think he wants me to call him.”
Emojis are here to stay as technology evolves. Analysts refer to the uptick in emoji use as “watching the birth of a new language.” With authors tweeting millions of regretful tweets shared per day, the legal profession may be dealing with lawsuits aplenty—all over what started out as 54 smiley face emojis when Apple introduced the iPhone—today, the iPhone offers a broad range of hundreds of emojis, and Android and other operating systems have joined the ranks and continuously invent more puzzling emojis 🤣 🥺 for lawyers to debate.