Emoji Literacy and the Law: Interpreting and Assessing Emotional Context

Emojis have been used to convey emotional context online since the early days of the Internet. Early emoji images were built from standard keyboard symbols, such as a colon followed by a closed parenthesis to suggest a smile.

Today, emojis are built into a wide range of devices and the information they convey has expanded as well. Emojis are now a language of their own, and interpreting “emoji language” has become vitally important in an increasing number of legal cases throughout the U.S. and in other countries.

Emojis in Court: Recent Cases and Their Results

In 2014, a U.S. District Court judge in Michigan was confronted with a case in which a male University of Michigan law student sued a fellow female classmate, the school, and local police, claiming he was unlawfully investigated after the female classmate lied about being harassed by him.

In his defense, the student claimed that an emoji inserted into a text message he’d sent a friend tempered the content of the text, which included the student saying he wanted to make his classmate “feel crappy” and experience “deep dark pits of depression.” The judge, however, found that the emoji “does not materially alter the meaning of the text message.”

In June 2015, the U.S. Supreme Court overturned the conviction of a Pennsylvania man found guilty of threatening his wife via Facebook. The court agreed with the man’s argument that an emoji in one of the posts meant his threats of harm against his ex-wife weren’t serious. Android and iOS keyboards now include hundreds of more complex emoji, including full-color cartoon images of vegetables, flags, and other objects. As a result, some courts find themselves forced to interpret the meaning of these more complex symbols as well.

For example, in one Israeli case, a couple seeking an apartment texted the landlord several emoji, including a smiley face, a comet, a champagne bottle, dancing Playboy bunnies, and a chipmunk. Based on these emoji, the landlord believed that the couple had agreed to rent the apartment. When they stopped responding to his messages, the landlord sued. The court agreed that the couple had negotiated in bad faith.

Similarly, in a New Zealand case, a man texted his ex-partner the words “you’re going to fucking get it” followed by an emoji of an airplane. The court ruled that the airplane emoji implied the defendant was “coming to get” his ex, and sentenced him to 8 months’ imprisonment for stalking.

In one South Carolina case, the defendants sent a text message comprised solely of three emoji: a fist, a pointed finger, and an ambulance. The court ruled that the message was unambiguous: the text’s recipient would be beaten so badly he’d need an ambulance.

Who Speaks Emoji?: Choosing An Expert When Emoji Interpretation is at Issue

The U.S. has been slower to seek standards for emoji interpretation than some countries. In January 2015, the judge presiding over the Silk Road case ruled that any online communications entered as evidence in the case had to include any emoji originally used – but the case did not set standards for testimony, expert or otherwise, regarding what those emoji meant.

Out of court, research continues on emojis and their most common meanings. The Unicode Consortium, founded in 1993, includes tech and language experts that work to standardize emojis for worldwide computer compatibility. The consortium gives a name to each of its standardized emoji, like “Face With Tears of Joy” or “Face Savouring Delicious Food,” that may help to define the emotion expressed.

A research team in Slovenia is also working on building an emotional scale for evaluating emotions communicated via emoji. A 2015 study examined 1.6 million tweets in 13 languages. They asked 83 humans to rate the text’s emotion as positive, negative, or neutral, then evaluated the included emoji accordingly.

Some of the Slovenian study’s results seem obvious: smiling faces are associated with positive emotions, while crying faces tend to be negative. Others seem downright baffling: the bento box emoji is often negative, and the panda face is less positive than most other animals.

While few expert witnesses specialize solely in emojis, experts who specialize in linguistics and interpersonal communications may be able to contribute much to a case in which emoji are at issue. In particular, experts who stay up to date on emerging “emoji interpretation,” such as the Slovenian study and the Unicode Consortium’s definitions, can help shed light on popular emoji meanings and the ways in which these small symbols can be reasonably interpreted by both users and readers.