Attention lawyers, your clients' use of emoji matters

By Traci R. Gentilozzi

Emoji are all around us. You’ve seen them – those tiny (sometimes strange) pictures that people insert in their texts, emails and social media posts.

People tend to use these images to reflect their emotions or feelings at the time. Seems innocent enough, right?

Wrong. Emoji are not always as innocuous as they may seem, especially when they’re part of evidence admitted in a legal proceeding.

The Emoji Explosion

More than 70 percent of Americans use emoji (formally called “emoticons”) on a regular basis. In fact, there are now upward of 2,600 emoji that people can include in their digital communications, and more are being created every day.

Because of the emoji explosion, courts across the United States are being asked to interpret the meaning of emoji in admitted evidence, including text messages, e-mails and social media posts. According to The Wall Street Journal, emoji were mentioned in more than 30 federal and state court opinions in 2017 – an increase from 25 opinions in 2016 and 14 opinions in 2015.

For instance, a court may grapple with questions like:

What does an angry face mean in a text message in a bitter divorce case?

In a sexual harassment suit, how should  (smiley face with wink) be interpreted in an e-mail between a supervisor and a subordinate?

Does (knife emoji) in a social media post show intent or threatening behavior in an assault case?

Emoji Interpretation by Michigan Courts

Michigan is one state where the courts have tackled the meaning of emoji. To date, Michigan courts have been asked to decipher one emoticon in particular – the stuck-out tongue.

In 2015, Judge Robert Cleland of the Eastern District of Michigan was asked to rule on the meaning of the stuck-out-tongue emoticon in a text message. The case, Enjaian v Schlissel, involved a male student at the University of Michigan Law School who allegedly harassed and stalked a female classmate. When no charges were filed, the student sued the classmate, the school and the police, asserting the text messages he sent should not have been taken seriously because the messages included a stuck-out-tongue emoji.

But Judge Cleland disagreed, finding the protruding-tongue emoji did not “materially alter the meaning of the text message,” wherein the student had said that he wanted to do “just enough to make [the classmate] feel crappy.”

Meanwhile, the Michigan Court of Appeals saw things differently in Ghanam v Does, 303 Mich App 522 (2014). In Ghanam, a defamation case, one of the statements claimed to be defamatory was this: “the city was ‘only getting more garbage trucks because [the plaintiff] needs more tires to sell to get more money for his pockets :-P.’”

According to the Court of Appeals, the stuck-out-tongue emoji at the end of the sentence could not be taken seriously because it was “patently clear” the user was joking. The Michigan Supreme Court denied leave to appeal in Ghanam.

The Future of Emoji

Emoji present some interesting legal questions. For example, supporters of free speech are troubled that certain emoji are often viewed as negative or threatening. And defense lawyers sometimes argue that emoji should not be considered at all, or only in limited circumstances.

Given the increased use of emoji in daily communications, it can be difficult to argue that these little pictures do not convey the intent or feelings of the user. In fact, it’s pretty much understood that when an emoji is included in a message or a social media post, it reflects the attitude or feelings of the user at the time, whether good or bad.

So, then, why are emoji difficult for courts to understand? Because they can be ambiguous in their use.

Although emoji often reflect the user’s intent or attitude, they can also undermine it in certain circumstances. For example, does a stuck-out-tongue emoji in an email about the terms of a contract mean the user dislikes the proposal? Or was the emoji inserted to convey sarcasm, although the user is willing to accept the contract terms? Questions like these are what the courts are increasingly facing.

In the meantime, it’s clear that emoji are not disappearing anytime soon, which is why courts must continue to examine them when they are part of admissible evidence. As a result, courts will keep facing emoji interpretation challenges.

As well as interpretation challenges, another emoji problem is judicial inconsistency. Admittedly, courts have only begun to interpret the meaning of emoji in recent years. However, it appears that many courts have reached opposite conclusions regarding the use and meaning of certain emoji. This further muddies the already-murky emoji waters.

For now, it seems the meaning of emoji will turn on the specific facts of a particular case.

Lawyers: Don’t Discount the Emoji

As more people use emoji in their communications, attorneys must be mindful to not automatically disregard their use and importance.

Lawyers need to know about . . . and understand . . . their clients’ pertinent communications that include emoji. Practitioners need to talk with their clients about why an emoji was used in a text message, email or social media post.

This also means that lawyers need to begin grasping the subtle nuances of emoji. To help with this, studies are currently underway that analyze the use and meaning of emoji. In addition, legal conferences are now offering seminars to help lawyers determine what emoji mean and how people (your clients) use them.

WIRED’s Julia Greenberg hit the nail on the head when she said this: “When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren’t being derided or ignored. Emoji matter.”

(Attorney Traci R. Gentilozzi owns 360 Legal Solutions, PLLC, a company that focuses on legal content development and promotion for sole practitioners and small firms.)