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Emojis Are Increasingly Making Their Way Into Litigation

March 7, 2019  |  9 min read

Emoji Heads

It’s officially 2019. We haven’t mastered FOIA response, or put a woman on Mars. But texting is next-level fun—because everyone and their mom uses emojis. 🤗 But these little, yellow icons are posing some novel challenges for legal professionals.

In the past two decades, emojis become nearly ubiquitous due to their uncanny ability to impart very specific tones and states of mind. And although they might seem silly, emojis are also infiltrating serious business conversations across the country. Slack, for example, uses a custom lightbulb emoji to trigger internal patent application processes, and even the White House has gotten in on the fun—though the President’s Twitter stream appears to be emoji-free.

As emoji usage increases, both in private and corporate communications, smiley-faces are starting to show up in court, adding levity to otherwise somber proceedings. The only problem is: no one is quite sure what they mean—adding a new layer subjectivity to electronic evidence and causing serious problems for eDiscovery professionals.


Emojis: The Origin Story (🚼🐣📖)

As we’ve written previously, emojis were invented by Japanese artist Shigetaka Kurita in the late 90s, at the height of the dot-com boom. Like emoticons, which are composed of punctuation ( i.e. :-) ) emojis seek to communicate non-verbal emotions. But unlike their humble cousins, emojis are regulated by the Unicode Consortium, which gives every icon a character code to ensure that the symbols remain somewhat consistent across platforms.

When emojis first became popular, users had to download an app to use emojis. But large tech companies like Apple were quick to capitalize on the icons’ success, building the pictographs into their operating systems. Nowadays, you can access emojis through any iOS or Android keyboard, and as of February 2019, there are 2,823 emojis registered by the Unicode Consortium. They have become so popular that 😂 was the Oxford English Dictionary’s 2016 word of the year. There’s even a version of “Moby-Dick” written entirely in emoji.


A Smiling Poo Emoji Is Worth a Thousand Words (💩 = 💯📝)

Needless to say, emojis are great for social media and marketing. People love cute, colorful images, and according to Forbes, nearly half of Instagram posts include an emoji of some kind. But the tiny icons have also caused quite a stir in the legal community—and not in a good way.  

According to Eric Goldman, a professor at Santa Clara Law and the foremost scholar on the subject, there has been an exponential increase in “emoticon” and “emoji” court references over the past 15 years.

In 2004, for example, there was only one “emoticon” reference, in a fairly run-of-the-mill case by today’s standards. One company sued another, claiming trade secrets misappropriation, and the plaintiff tried to use an email containing the text “...spy ;-)” to prove the defendants had someone on the inside. But the reference didn’t do much good, for the plaintiff anyway. As the judge astutely observed, the winky-face emoji generally conveys “sarcasm”—a reading which actually undermined the accuser’s case.

emoji-chart

(Court references to emojis have exploded, as charted by Eric Goldman.)


Meanwhile, to find the term “emoji” on the books, you have to fast forward all the way to 2015, nearly 20 years after its invention. Litigants were a bit slow on the uptake there, but the term has since exploded. Emojis now show up in nearly every area of litigation. Last year, there were more than 45 references to the technology, in cases concerning everything from civil rights to sexual predation and murder.

In one widely discussed example, a landlord in Israel was even able to use six “celebratory” emojis (💃🏻👯‍✌️☄️🐿️🍾) to prove potential tenants had intended to rent his property. After receiving the pictograms from the couple, the landlord took his listing down, then sued the would-be tenants for damages when they never followed through. Ultimately, the judge sided with the homeowner, noting that “[those particular] icons convey great optimism” which was “misleading,” and he fined the emoji-senders 8,000 shekels (around $2,200).


So What? 🤷‍♂️

Emojis add a new layer of complication to an already complex litigation process. For one, emojis are difficult to search for. They almost function like secret keywords—hard to find unless you know what you’re looking for. They are often logged by Unicode tag in raw text, which means you can technically search for them in any eDiscovery platform, but many lawyers simply don’t know how to return this kind of information—that “U+1F351” could actually be a peach (🍑) and key evidence to support a claim of sexual harassment, for example.

While this lack of searchability is unfortunate, Goldman argues that there is an even more pressing problem: making sense of what emojis actually mean. Even if you manage to find the icon you were looking for, emojis are often difficult to interpret—and this subjectivity may pose novel interpretive challenges for the judicial system.

One reason for potential miscommunication is that, although emojis in general are ubiquitous, each individual icon’s appearance can vary greatly from platform to platform. In 2016, a group of researchers at the University of Minnesota investigated how different “emoji fonts”—which is to say, the multiple ways an emoji can appear on different devices—impact emotion perception. They gathered five platform renderings (Apple, Google, Microsoft, Samsung, and LG) of 22 of the most popular emojis, then asked participants to both describe the icon in words and assess the emotional meaning (on a scale of -5, strongly negative, to 5, strongly positive). For 9 of the 22 emojis selected, “the average difference in emotion rating between two platforms was greater than 2 points” on the scale. Even within platforms (i.e. one Apple user sending a smiley to another Apple user), the average difference was a surprising 1.88 points, which suggests that there is “quite a bit of potential for miscommunication.”

To make matters worse, most emoji-users are completely unaware that the smiley they send could appear differently to a friend, colleague, or would-be re-tweeter. In a follow up study, those same researchers polled a sample of Twitter users and found that 25 percent of people studied were unaware of potential emoji rendering differences—and “20 [percent of respondents] reported that they would have edited or not sent [their] tweet.”

Goldman and others argue that these emoji “dialects” can harm users—and potentially litigants—more than you might think. It’s one thing to regret a tweet. Plenty of people wish there were a clawback rule for cyberspace. But when a case involving emojis gets to court, for example, the judge and jury need to make snap judgments about intent and motive—an already-difficult task, even under the best circumstances. And now, those judgments might be based on a small selection of tiny, yellow icons.


Worth the Hype? (📣💥⁉️)

If there are two emoji renderings, which one should the attorneys show? Should emoji images be printed in judicial opinions, or does a verbal description suffice? These are the real questions of our time, and they have some attorneys breaking into a sweat. But let’s not get ahead of ourselves. Further research suggests that emoji-based evidence might not be as incomprehensible as it seems.

Unknown entities are scary, but humans are incredibly perceptive when it comes to emotion. We see faces in all sorts of weird places, like cheese graters, clouds, and electric sockets. And we’re surprisingly good at categorizing what we see. Research shows that there are seven universally recognized expressions of emotion—anger, fear, sadness, disgust, enjoyment, surprise, and contempt—and this is precisely why emojis are so popular in the first place.

Although miscommunication is certainly possible with emojis (as with words), when both people see the same physical image (which is to say, emoji dialects are not involved), pictographs can also lend deep nuance to a text conversation. Many of us, for example, have added a smiley face at the end of a pointed text to soften the blow, and research backs us up. A 2017 study of text messaging in romantic relationships revealed that when the content sentiment of a message conflicts with the level of emoji usage (i.e. someone says something negative but takes the time to include an emoji) people are pretty good at making meaning out of the icon. For slightly negative messages, texts with an emoji were perceived as more positive because they indicated that the sender still had a vested interest in the relationship. However, if the message was extremely negative, recipients read emoji-use as signaling less interest by increasing message negativity. In other words, texters don’t think in black and white.

It’s also worth noting that emojis can generally be split into two distinct groups: icons that represent emotions (e.g. a smiley or frowny face) and icons that represent specific objects (e.g. an orange). Seventeen of the cases Goldman has compiled include “noun” emojis, and these “guns, bombs, and dollar signs” of the world are not nearly as likely to be misunderstood as, say, a blushing face. As a Special Agent in one recent case put it, “based on [my] experience investigating street gangs, firearm offenses, and narcotics trafficking, [I] believe the cloud emoji refers to drugs.” Words to live by.  


Not Such a 💣 After All

What this research tells us is that emojis aren’t coming out of left field. They capitalize on the human desire for connection, as well as our capacity for nuance, and they are nothing to be afraid of.

These are exactly the kind of nuanced issues that lawyers have been explaining and exploiting for centuries. At their core, emojis are not so different from other forms of nonverbal communication, like body language. Juries routinely judge witness credibility based on subtle physical cues, such as gaze aversion, despite the fact that eye contact is not a reliable indication of truthfulness.

In the end, emojis are a fact of life. In the coming years, emojis are only going to become more popular, and they will continue to crop up in court. In the meantime, Goldman suggests that lawyers offset potential miscommunication by identifying emoji dialect differences early and often and including images of the icons in question in briefs and arguments so juries know which icons they are dealing with.

Emotionally speaking, courts might not be prepared for emojis. But lawyers (and juries) are.