If you are staring at a text message trying to decipher what the crazy looking emoji means but find yourself failing miserably, you’re not alone. The legal industry is right there with you for the time being. Attorneys have a challenging task when it comes to the interpretation of data, given the explosion of texting and social media. Add emojis and emoticons to that equation and many attorneys find themselves navigating unchartered waters.
In a National Law Journal article, Santa Clara University School of Law professor Eric Goldman researched recent legal opinions to determine how many contained a reference to an emoticon or emoji. Goldman found 25 opinions in 2016 and 33 in 2017. It seems that number will continue to grow in 2018 and with it a problem for attorneys: interpretation.
While emoji are defined by the Unicode Consortium, (it sets software internationalization standards), not all technology companies follow these standards. What the recipient of your text will see, depends on the implementation of the emoji on the receiving end of the communication. Friendly intent followed by an unintended interpretation, can certainly create a slippery slope with unforeseen legal ramifications. Goldman illustrates his point with a well-known emoji, “Grinning Face with Smiling Eyes”. Sounds like a nice text to receive, right? However, that emoji has changed significantly between different versions of Apple’s iOS operating system. If you use iOS 6.0, you’ll see a face with clenched teeth and a straight mouth, but if you use iOS 10.0 you see a wide curved grin. Clenched teeth and a straight mouth doesn’t exactly convey a feeling of happiness, but that’s just my interpretation.
A recent Wall Street Journal article also explored the challenges emoticons present to attorneys. In 2014, a defamation dispute was brought in Michigan court. At issue was a comment accusing a local official of corruption, with a “tongue-out” ( 😛 ) emoticon added at the end. The Michigan Court of Appeals dismissed the comment saying it “is used to represent a face with its tongue sticking out to denote a joke or sarcasm” so the comment cannot not be taken as defamatory.
As the legal field continues to wrap its arms around the question of emoticon and emoji interpretation, it should probably add GIFs and Memes to the list, and of course, the next big thing we (or at least I) haven’t heard of yet. In the meantime, if you happen to see an attorney frantically searching Emojipedia, (yes, it’s an emoji dictionary and news site) assume that it’s probably an exercise in professional development.