Emojis Pose Challenges to Lawyers, Juries & Discovery Specialists

We have all used emojis.  Whether in our text messages or in our IMs, these wordless communications are commonplace.  In fact, by some estimates, more than 10 billion emojis are sent every day in various electronic messaging mediums. With the use of chat and mobile platforms only increasing, what do lawyers and eDiscovery professionals need to know about these marks and how they impact the discovery process and the courtroom?

What is an Emoji?

Emojis are small cartoon images that are interpreted and supported at the discretion of each application developer.  The predecessor to the emoji was the emoticon.

Why Are Emojis Complicated?

Anyone reading eDiscovery content knows that these tiny little carton pictures while often playful and cute, can be a challenge to identify, collect and process.  Part of the challenge is volume driven but part is platform driven.  Specifically, the Unicode Consortium, which is the standards body that allows software to recognize text characters and display them uniformly, acknowledges thousands of different emojis. But that number includes variables of the same image – for example different genders and skin tonality. And while much work has been done to standardize emojis, different systems support different emojis.  For example, while a slice of pizza is likely recognized universally, in reality a slice from the popular Domino’s® franchise looks different from a slice bought at the local brick oven pizza parlor.  Similarly, when dealing in emojis, a slice of pizza viewed on one device will look different than one viewed on a device by a different company.  For those of you who have ever shared a text among different phone operating system users, you have undoubtedly learned this lesson before now.  Indeed, if you ever received the question mark inside the rectangular shaped box – which appears when the recipient’s application does not support the sender’s application – the emoji image is indecipherable.   Complicating this phenomenon is that different instant messaging systems have proprietary emojis and additionally allow users to create their own emojis – none of which are acknowledged by Unicode.org. Add to that the fact that emojis often evolve.  For example, the “pistol” emoji was changed in 2016 by one operating system to a less dangerous version of itself (i.e., a “water pistol” or “toy gun”).  But, when received by a different platform, that water pistol or toy gun emoji might still appear to be a regular “gun” or “pistol” emoji.

Emojis in Litigation

Assuming you have been able to secure during discovery relevant emojis, use during litigation can be paved with surprises.  In fact, once a wordless communication (i.e., an emoji) is admitted into the record, courts and juries will look to the surrounding circumstances to interpret the communication.  And, while this analysis generally includes scrutiny of the accompanying text and whether the emoji alters the meaning of the message, how does one account for platform interpretation issues?  Meaning – what if the water gun I sent from my device is received by another device in a way that reflects a menacing weapon thereby manifesting a different intent to the recipient than what was intended by the sender.  At first glance, the emoji may seem innocuous, such as a simple smile to communicate happiness but taken in the context or community in which the communication is used, the meaning may be interpreted differently by the sender and/or recipient.  Indeed, emojis should not be considered a universal language having universal meaning and, like certain physical actions, the meaning of symbols can vary by community or culture.  Consider for example that the “thumbs up” emoji is considered vulgar in many countries in the Middle East yet typically considered a positive expression in most other countries.[1]

Because the complexities of interpreting the meaning and intent of the emoji in court is exacerbated by competing platforms, focused inquiry on the sender’s and recipient’s intent, surrounding circumstances and accompanying text may be critical. Unfortunately, 1 + 1 does not always equal 2 and things may not be as they may appear merely because of a certain electronically generated animated face. 

[1] A few cases involving emojis include Ghanam v. Does (where the Michigan Court of Appeals had to analyze the circumstances surrounding the use of the emoji “sticking out its tongue” within a communication in a defamation case); Commonwealth v. Danzey, (smile face embedded in social media did not immunize claims defendant stalked and harassed victim where wording demonstrated criminal intent); Kryzac v. State, (Tennessee case where “frowning face” emoji used as evidence of relationship between defendant and victim); State v. Disabato, (defendant in Ohio was convicted of telecommunications harassment for sending unwanted text messages, some of which included “rodent” emojis); Commonwealth v. Foster (Pennsylvania defendant on probation for a drug-related conviction raised the suspicion of his probation officer when he posted photographs depicting guns and money along with three “pill” emoji).