When Emojis Wreak Havoc in Litigation: What Is the Meaning of an Unamused Face in a Text Message?

We use them casually and frequently. Those emojis are shortcuts in communication. emphasis in messages, and shorthand humor. We just may not realize what can happen if our texts and e-mails end up as critical communications in a lawsuit.  Two professors from Deakin Law School in Melbourne, Australia have an article that sheds light on emojis and litigation. Elizabeth A. Kirley and Mariilyn McMahon, "The Emoji Factor: Humanizing the Emerging Law of Digital Speech,  Tennessee Law Review (forthcoming April 2018).

To illustrate the possible confusion, consider this excerpt from a recent Wall Street Journal article:

Debra Katz, an employment lawyer in Washington, D.C., says she was stumped by a combination of emojis that included horses and one that “looked like a muffin” in text messages associated with a harassment case. She solicited opinions from her colleagues in the office about what it might mean. Her client told her it meant “stud muffin.” She says her client viewed the emojis as an extension of the alleged unwelcome advances at issue in the dispute. Mike Cherney, "Lawyers Faced With Emojis an Emoticons Are -\_(")_/-,"  Wall Street Journal, January 30, 2018, p. A1. 

One can see how such symbols can demonstrate issues of sexual harassment. If you are the plaintiff in a personal injury suit but have happy emoticons in your communications, you could undermine your case,  A text message in which your emoji indicates that your are just fine also undermines credibility. What does the red-lipstick Emoji mean in the context of office text messages? And what do a smiley face, a comet, a champagne bottle, dancing Playboy bunnies, and a chipmunk mean when responding to a landlord offering an apartment for rent?  The landlord took it to mean that the couple sending them wanted to rent the apartment. The landlord removed the apartment from real estate listings and then the couple quit responding.  The landlord was left with a vacant apartment and sued the couple, relying on the Emojis for their intent.

Emojis make their way into criminal law as well. In France, a judge found that sending the gun Emoji to an ex-girlfriend was sufficient to show a criminal threat. In Virginia Emojis have been used to establish computer harassment.  For more examples, read here

Text messages, e-mails, and online posts are discoverable and admissible as evidence.  The increasing use of Emojis and Emoticons as shorthand communications has resulted the need for interpretation.  Those Emojis and Emoticons can and will be used against you in a court of law. Use carefully and sparingly.

DISCUSSION STARTERS

Make a list of the types of legal actions where Emojis and Emoticons could be controlling of the outcome.

What do you learn about casual communication using symbols?