With the recent introduction of 230 new emojis for 2019, which brings the total number of emojis up to 3,053, consumers are presented with a seemingly limitless selection of emojis applicable to any given situation. With 3,053 options to choose from, and increasingly capable screen displays, emojis are becoming both more visually nuanced and increasingly situation-specific. However, determining what exactly an emoji means in any given message remains an elusive task for courts, which face the challenge of extracting meaning from emojis without the benefit of context or user-specific meaning.
Although emojis are a rapidly-growing cultural phenomenon (5 billion emojis were sent daily over Facebook Messenger in 2017), academics have only recently began to explore their effect on communication. Eric Goldman, a Professor of Law at Santa Clara University, contributes to this academic discussion by researching the use of emojis and emoticons in court opinions. “Emoticon” refers to symbols made with ordinary key strokes, while “emoji” refers to the group of illustrated symbols curated by the Unicode Consortium. In addition to designing and approving new emojis, Unicode provides a brief title for each emoji (for example, “Face With Tears of Joy”). Professor Goldman tracks the use of emoticons and emojis in court opinions by searching for the terms “emoticon” and “emoji” in legal research databases, which are not equipped to display the actual illustrated characters. Similarly, court opinions may describe an emoji verbally, or omit reference to it altogether, but the symbol itself will not appear in the opinion. Although these judicial references began in 2004, Goldman found that over 30% of all cases mentioning emoticons and emojis occurred in 2018 alone. As these characters become an integral part of electronic communication, their presence and importance in judicial decision-making will also increase. This concern has prompted British lawyers to call for judicial guidelines on the interpretation of emojis.
Emoji usually have dialects. They draw meaning from their context. You could absolutely talk about emoji as a phenomenon, but as for what a particular emoji means, you probably wouldn’t go to a linguist. You would probably go to someone who’s familiar with that community
Eric Goldman, Professor of Law at Santa Clara University
In addition to lacking the capacity to display emojis in legal research databases or judicial opinions, another problem to interpreting emojis exists: how will an emoji appear across different platforms? A recent study found that 25% of surveyed Twitter users did not know that emojis appear differently across platforms, while 20% of surveyed users would have edited or deleted a tweet had they been aware of the visual differences other users would experience. Although Unicode approves each new emoji and provides a brief description and sample image, tech companies are responsible for adapting each emoji to their own platforms. Thus, a consumer viewing an emoji on an iOS system may see a completely different image than a consumer viewing the same emoji on an Android or Windows system. For example, iOS 10’s pistol emoji showed a toy-like water gun, while every other platform showed a revolver (with the exception of LG, which showed a semi-automatic handgun). Imagine the shock of discovering that the playful symbol you had sent from your iPhone rendered as a threatening weapon on the recipient’s Samsung, and is now being used against you in court. Similarly, researchers found that the “grinning face with smiling eyes” emoji was interpreted as having negative connotations by iOS users, while users of other operating systems believed the emoji conveyed joy. Small differences in emoji design can lead to widely varying interpretations among users on different platforms, especially with emojis featuring facial cues.
Professor Goldman has three recommendations for judges to follow to reduce the chances of misinterpreting emojis in court. First, judges should require each litigant to introduce an emoji that is identical to the one they viewed on their respective device. This would show the discrepancies between how the sender saw an emoji and how the recipient saw it. Next, judges should require each emoji to be shown to the jury and displayed when relevant to the testimony at hand. Finally, judges should enter the actual emoji into their opinions (rather than describing the emoji verbally), even if legal research databases remain unable to render an emoji correctly: at least the original opinion and scanned duplicates would show the actual emoji. Professor Goldman’s recommendations minimize the risk of misinterpretation arising from verbally describing an emoji and are designed to highlight the different images litigants may have seen on their respective devices. As such, these recommendations provide a good starting point for judges faced with the daunting task of interpreting the meaning of an emoji in court.
Aaron Dalton, 31 February 2019