Our online conversations are full of emoji. While fun characters can be a creative way to express concepts to friends, their interpretation can be a daunting legal puzzle.
According to Eric Goldman, a law professor at Santa Clara University, the number of lawsuits that refer to emoji or emoticons has grown exponentially. According to Goldman's count, there were 53 cases in 2018, up from 33 in 2017, 25 in 2016 and 14 in 2015. So far, Goldman has identified 171 all-time court cases involving emoji, either more than 30% of the total. last year alone. To be clear, this only includes cases that refer to the words "emoji" or "emoticon" – it is unclear if there are perhaps more cases where emoji are referenced only by symbols.
Of course, this is only normal when SMS, e-mail and other types of electronic communications become more and more sources of evidence, especially in cases of sexual predation and discrimination at work.
For example, a WSJ report refers to a case of sexual harassment in which an "emoji" response was an employee who approved the romantic advances of his former trading partner or politely ordered him to depart. The Verge also refers to a case in the San Francisco Bay Area where a man was arrested during a prostitution operation. Key evidence included his Instagram DMs and the emoji chain. Prosecutors said it implied that he was a pimp, while the defendant said that he was just trying to flirt. And in 2017, an Israeli couple was found guilty of leading an owner by sending an SMS to this emoji combo, which the owner took to mean that they wanted his apartment. When they fantasized, the owner brought an action for damages. The courts ruled in his favor by saying that the happy emoji had shown their intention to do business.
However, there is much to be feared with regard to this gray interpretative area with regard to the current legal frameworks. For starters, Goldman states that legal opinions can not always display emoji and are systematically omitted. Databases, such as Westlaw and Lexis, can not display emoji either, which prevents lawyers from seeking court views where they could have been used.
The fact that emoji are not returned uniformly on all platforms also adds to the problem. One of the best examples is that until recently, Apple users sending an emoji water gun were inadvertently sending Android users a real revolver. What complicates things is that emojis can have very different meanings depending on where you live. In Japan, ? was initially conceived as a triumphant look to return to anime and manga. In the West, it is more frequently used to indicate frustration or anger.
When you take all these factors into consideration, emoji can be trickier and legally obscure that you might have the intention when you send a text. Currently, it is not a protocol that allows judges or lawyers to present the correct emoji, or return them to court. This only creates more confusion when you consider that the publications and opinions of the courts may even omit them altogether because they do not yet know how to represent them correctly.
So, for the sake of God's sake, even if the courts still know how to analyze emoji language, use common sense. "Maybe not send ambiguous colleagues" or any of these emoji essays when they'll do you a favor. Maybe a follow-up with clarification if you send your landlord or roommate before they think you've already sent rent when you mean. will send rent. A little "jk" or even words (remember those?) Stating your intention could save you from hurt feelings or legal nightmares. As a general rule, if you can not decipher your emoji channel, a judge or lawyer probably will not be able to decipher it either.[Eric Goldman via The Verge]