Emoticons – the often whimsical hieroglyphics that most so affectionately know as “emojis” – have become ubiquitous in modern digital communication not only by individuals but also by corporations as part of their advertising and marketing campaigns on social media. Emojis have also begun appearing as evidence in court cases.
A short, but fascinating, discussion between several experts in the fields of computer science, hieroglyphics, and social media of the impact emojis have had on our language can be found here. The crux of the discussion is that emojis can have a profound impact on the way we communicate. Essentially, the inclusion of a single emoji can alter the meaning of the accompanying text. Alexandre Loktonov, AHRC Fellow at the Kluge Center and an expert on hieroglyphics, likens emojis to what are known as “deteriminatives” in Egyptian hieroglyphics, or “signs, which, without having a phonetic value of their own, can ‘color’ the meaning of the preceding word or phrase.” In recent years, the nature of emojis has been addressed in several lawsuits, proving that courts may be recognizing the importance these characters have begun to have with respect to our language and communication.
In one case, a couple in Israel was recently ordered by an Israeli court to pay up to $2,200 in connection with a text that contained misleading emojis. After listing a property in an online advertisement, a landlord, the plaintiff, received a text from the defendants stating that they were “interested in the house,” just wanted to “discuss the details,” and asking when a good time would be to do so. However, the text message was also laden with an array of emojis that were generally celebratory in nature. As a result of this text, the landlord removed the listing. When the prospective tenants did not show up to the meeting and fell out of touch, the landlord sued. The judge noted that the emojis conveyed “great optimism,” and that, while the message did not create a binding contract, it caused the landlord to rely on the defendants’ desire to rent the apartment. The judge further noted that toward the end of negotiations, the defendants used two “smiley” symbols, which the judge determined to mean that everything was in order.
In another instance, during the trial of Ross W. Ulbricht (dubbed the Silk Road Trial), who was charged with running a black-market bazaar online, emoji use played a significant role in communications that were introduced as evidence. Several communications between Mr. Ulbricht and employees contained various emojis. When prosecutors simply read the communication between Mr. Ulbricht and an employee to the jury (“I’m so excited and anxious about our future, I could burst”), they omitted any reference to the “smiley” emoji that followed. Mr. Ulbricht’s lawyer objected to the omission and argued that its inclusion was essential to the meaning of the communication. The judge in the case agreed, and while she permitted the text to be read aloud, she also instructed the jurors to read the communications, stating that the jury should note the punctuation and emoticons.
In Elonis v. United States, a case decided by the U.S. Supreme Court in 2015, the Supreme Court reversed Elonis’s conviction under federal law of essentially making threatening communications to injure the person of another. The primary issue in the case was whether Elonis’s intended to communicate a “true threat.” Elonis argued that the threatening and violent posts directed toward his wife were meant in jest because the communication included a “smiley” emoji sticking its tongue out. The Supreme Court did not discuss the use of emojis, but reversed the conviction on other grounds. Still, the role of emojis was central in the trial and subsequent appeal.
As the use of emojis becomes more prevalent in our communications, it stands to reason that emojis will continue to be seen more frequently as evidence in courts of law. As judges have recognized, the meaning of a written communication – including the writer’s apparent intent – can change entirely based on the inclusion of an emoji. The meaning of company communications, whether internally or to the public, is not limited to a reading of the letters of the text alone, but can be altered by the use of capitalization, punctuation, and other pictographic characters, including the ostensibly harmless little emoji.