Emojis have become a global language in the digital age, yet their meanings are far from uniform. What appears as a friendly gesture in one culture might be interpreted as an offensive image in another, highlighting the context-dependent nature of these tiny graphical icons. As emojis continue to evolve, their complexity has now reached a new frontier: the legal system. Courts are increasingly grappling with emoji interpretations. These seemingly innocuous symbols can carry significant legal weight in interpreting communications, potentially influencing litigation outcomes.
Both emojis and emoticons serve as informal ways to express emotional tone whether through an email, text, or social media post. In digital communication, emojis are “any of various small images, symbols, or icons used in text fields in electronic communication to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc.” https://www.merriam-webster.com/dictionary/emoji (last visited Nov. 24, 2024). In contrast, emoticons are “a group of keyboard characters (such as :-)) that typically represents a facial expression or suggests an attitude or emotion.” …” https://www.merriam-webster.com/dictionary/emoticon (last visited November 24, 2024).
Eric Goldman, Associate Dean for Research and Professor of Law at Santa Clara University School of Law, has been collecting data on emoji and emoticon references in court cases for years. Since one logged case in 2004, he has recorded an increase in courts grappling with the interpretation of these electronic images in both criminal and civil matters. For 2023, Goldman says he logged 225 cases, which is a 17% percent increase over the year before. See Eric Goldman, 2023 Emoji Year-in-Review, Technology & Marketing Law Blog (Jan. 22, 2024) https://blog.ericgoldman.org/archives/2024/01/2023-emoji-law-year-in-review.htm.
Litigation involving the interpretation of emojis is growing in number and diversity in case types.
In Sewell v. Daniel, 2020 WL 1800935 (N.D. Ga. 2020), the federal court found that an exchange of text messages created a material dispute of fact as to whether a party had waived a technical breach of contract. Id. at *2. In that case, the plaintiff had an option to purchase a house he was leasing from the defendant. When the defendant asked the plaintiff via text whether he was prepared to buy the house, the plaintiff responded, “Yes and yessir!,” which elicited a thumbs-up emoji from the defendant. Id. at *1. The defendant then followed up asking for a purchase contract, which the plaintiff later forwarded but to no reply by the defendant. The defendant had argued that he was entitled to summary judgment because the terms of the purchase option had not been followed, but the court disagreed, noting that the defendant’s ‘thumbs up’ text and follow-up request for a proposed contract created a material dispute of fact as to waiver of such requirements. Id. at *2.
In a different case, the Supreme Judicial Court in Commonwealth v. Castano, 478 Mass. 75 (2017) upheld a murder conviction where evidence included the defendant’s text to his friend through WhatsApp with an emoji of a face with X’s for eyes and a reference to the defendant’s girlfriend. Id. at 78 -84. The theory of defense was that the girlfriend’s death by the defendant had been accidental. Id. at 81. Based on the totality of the evidence, the SJC found the evidence strongly supported the jury verdict. Specifically, as to the emoji text, the SJC found that such communication in that context was “irreconcilable with an accidental shooting.” Id. at 84.
More recently, in In Re Bed Bath & Beyond Corporation Securities Litigation, 687 F.Supp.3d 1 (D.D.C. 2023), the federal court considered whether an investor class action could survive a motion to dismiss of claims for misrepresentation or omission where a shareholder, following a negative CNBC media story about the company with a picture of a women pushing a shopping cart, replied by tweet that, “At least her cart is full,” accompanied by a “smiley moon” emoji. Id. at 7. In denying dismissal of the claim, the federal court explained that the plaintiff had adequately alleged that in context, the tweet with the “smiley moon” tweet relayed the meaning “to the moon” which investors took as confidence by the shareholder that the stock would rise. Id. at 11-12. On consideration of the emoji as evidence, the Court noted that a “fraudster may not escape liability simply because he used an emoji. Just like with words, liability will turn on the emoji’s particular meaning in context.” Id. at 11.
As litigation in our courthouses increasingly involves emoji evidence, practitioners and courts will need to consider how such evidence is admitted or used at trial under current court rules. There also remains some legal challenges to emojis evidence because these icons could have varied meanings. For example, a smiling face, fire, or thumbs up may mean something different depending on a person’s age, culture, or the geographic region where the person is from. Emojis may reflect sarcasm or take on a different meaning based on the context of the message or the history of usage between the parties. Emojis may also look different depending on the platform used such that the sender may see a slightly different design of an image than the recipient.
Those watching this rise of emoji evidence in courts suggest that expert testimony may be needed in some cases to explain what a particular image means. For example, an expert could clarify an emoji’s meaning based on culture. As these images continue to creep into the business arena, lawyers will need to consider how such icons are interpreted by triers-of-fact in business disputes.
In summary, emojis are playing a growing role in litigation and legal arguments. Whether admitted as evidence in a contract dispute, sexual harassment claim, or shareholder fraud case, the trend of legal proceedings considering emoji communications suggests there is more to come and that this is just the tip of the iceberg. Business litigators should prepare to address the legal challenges that follow the admission and use of emoji evidence to support their claims or defenses in a legal dispute.