Legal Linguistics of Emojis in eDiscovery
Sierra M. Palmer, Esq.
Schwartz Semerdjian Cauley & Moot LLP
The old adage goes: A picture is worth a thousand words. The new adage goes: An emoji is worth…well, courts are still trying to figure that one out. Reactions to this emerging cartoon language tool range from smiley faces to frowny faces, but courtrooms and lawyers alike are now being tasked with trying to interpret the intended meaning of these cartoon emoticons in e-discovery.
i. What is an Emoji?
In the context of digital communications, an emoji is a “small digital image or icon used to express an idea or opinion.” These can usually be found in e-mails or text messages in the form of smiley faces, hearts, and hundreds of other digital caricatures of activities and various objects. The word “emoji” derives from the combination of Japanese words for “picture” and “character,” and although the term originated in the 1990s, it has gained traction and usage recognition over the past 10 years. A recent study found that a whopping 92% of the world’s online population uses emojis in their digital communications, resulting in over 2.3 trillion messages containing these emojis every year. With all of these emojis being used to convey linguistic meaning in mobile communications, the inevitable result is the production and attempted interpretation of these emojis in document production and evidence in the courtroom.
ii. Emojis in the Courtroom
A 2014 defamation case outlined the challenges courts have begun to endure in this new emoji interpretation undertaking. In Ghanam v. Does, a Michigan city official brought a defamation suit against Does who posted anonymous and allegedly defamatory comments about him on a local politics online message board. One of these comments said, “[t]hey are only getting more garbage trucks because Gus needs more tires to sell to get more money for his pockets.” At the end of this comment, the poster inserted a face emoji with its tongue sticking out. The standard to prove a viable defamation claim requires the plaintiff to show that the defendant published a false statement that is purported to be factual when in fact it is not. However, the court here did not believe the plaintiff made such a showing, thanks to the emoji. Despite the fact that the statement on its own may have been interpreted to convey a fact instead of an opinion, the court interpreted the tongue out emoji to “denote a joke or sarcasm.” On appeal, the court affirmed, using the trial court’s interpretation of the emoji to support their decision that no defamation had occurred.
An Israeli judge in 2017 interpreted a series of emojis in a text message to convey “optimism” and “intent” to lease an apartment, subjecting defendants to thousands of dollars in fees to their landlord. In his opinion, Judge Amir Weizebbluth shared new and telling insight on the issue:
This is the place to refer once again to those graphic symbols sent by Defendant to the Plaintiff. As stated, they do not, under the circumstances, indicate that the negotiations between the parties have matured into a binding agreement. However, the sent symbols support the conclusion that the defendants acted in bad faith. Indeed, this negotiation’s parties’ ways of expression may take on different forms, and today, in modern times, the use of the “emoji” icons may also have a meaning that indicates the good faith of the side to the negotiations. The [emoji laden] text message sent by Defendant 2 on June 5, 2016, was accompanied by quite a few symbols… a “smiley”, a bottle of champagne, dancing figures and more. These icons convey great optimism. Although this message did not constitute a binding contract between the parties, this message naturally led to the Plaintiff’s great reliance on the defendants’ desire to rent his apartment. Even towards the end of the negotiations, in the same text messages sent at the end of July, Defendant 2 used “smiley” symbols. These symbols, which convey to the other side that everything is in order, were misleading, since at that time the defendants already had great doubts as to their desire to rent the apartment.
Even in criminal cases, where jail time and even death is on the line, courts have had to determine whether or not these cartoon emojis can be interpreted to convey an actionable threat or severe harassment. Indeed, several defendants have faced jail time as a result of sending bomb, fire, finger symbols, and ambulance emojis that the court determined, in the context of the situation, met the standard for “threats” against public safety. For example, in People v. Cramer, the defendant was charged with making willful criminal threats to a victim by sending her a text message including emojis of bombs, guns, knives, needles and a fork and knife, which the court interpreted as a threat of bodily harm to the victim.
iii. The Experts
Santa Clara University law professor and expert on internet speech Eric Goldman has been tracking and studying the presence of emojis in the court system over the past decade. He explains that, while emojis are a form of textual conversation like any other language for the court to interpret, emojis have three specific attributes that render them unique from any other form of communications and require “extra consideration when interpreted” by the courts:
(1) Emojis are very small digital images, several of which look very similar to one another, meaning that there is a greater risk of incorrect decoding of the symbol.
(2) Regional and community-specific dialects are developed around every type of communication. Emojis can even appear differently on different platforms, meaning that the interpretation of these symbols can be regional, platform, and community specific, the meaning for which will be difficult to apply uniformly
(3) Because some emojis display differently on varying platforms, this means that the sender of the emoji and the recipient of the emoji could see “significantly different depictions of the same symbol.”
Goldman concluded that “determining how to apportion liability when both parties made reasonable but different interpretations of the same symbol will lead to many unhappy outcomes.” Goldman also notes that as of now, emoji experts do not really exist. “Emoji usually have dialects. They draw meaning from their context. You could absolutely talk about emoji as a phenomenon, but as for what a particular emoji means, you probably wouldn’t go to a linguist. You would probably go to someone who’s familiar with that community.”
Author Dami Lee explains in his article, Emoji are Showing Up in Court Cases Exponentially, and Courts Aren’t Prepared, there has been an exponential rise in “emoji evidence” appearing in US court opinions. An overwhelming 30 percent of that “emoji evidence” appeared in 2018, meaning that we are just beginning to see the tip of the iceberg in this new linguistic interpretation.
This emoji evidence has appeared in all kinds of cases, from defamation and sexual harassment suits all the way to robbery and murder charges. It has lent itself to conclusions about intent, tone, attitude, and contextual undertones. But with no emoji dictionary for the courts to reference in the textual interpretation of these cartoon symbols, the courts and lawyers alike must start from scratch in decoding this linguistic phenomenon. Insert thumbs down emoji here.
 Emoji, Dictionary.com, https://www.dictionary.com/browse/emoji (last visited Jun 9, 2019).
Infographic: 92% Of World's Online Population Use Emojis, CMO.com by Adobe: Digital marketing insights, expertise and inspiration – for and by marketing leaders, https://www.cmo.com/features/articles/2016/11/21/report-emoji-used-by-92-of-worlds-online-population.html#gs.gp7p6m (last visited Jun 7, 2019).
 Ghanam v. Does (Mich. Ct. App. 2014) 303 Mich.App. 522
 Id. at 525.
 Id. at 526.
 Id. at 534-535.
 Id. at 548.
 Id. at 551.
Ido Kenan, ✌️☄️️ Show Intention to Rent Apartment, Says JudgeRoom 404, http://room404.net/eng/
 Kristen Lambertsen, SC pair arrested after 'threatening' emojis sent on Facebook, deputies sayWNCN(2015), https://www.cbs17.com/news/sc-pair-arrested-after-threatening-emojis-sent-on-facebook-deputies-say/1080668510 (last visited Jun 9, 2019); Liz Gotthelf, Maine teen faces felony charge after posting gun emoji on social media app - News - Bangor Daily News - BDN MainePerma.cc(2016), https://perma.cc/X4LG-8HV5 (last visited Jun 9, 2019).
 People v. Cramer, No. C080611, 2016 Cal. App. Unpub. LEXIS 5667, *2 (Aug. 1, 2016).
 Eric Goldman, What's New With Emoji Law? An Interview Technology & Marketing Law Blog(2019), https://blog.ericgoldman.org/archives/2019/02/whats-new-with-emoji-law-an-interview.htm (last visited Jun 9, 2019).
 Dami Lee, Emoji are showing up in court cases exponentially, and courts aren't prepared The Verge(2019), https://www.theverge.com/2019/2/18/18225231/emoji-emoticon-court-case-reference (last visited Jun 9, 2019).