Ride the Lightning

More and More Court Cases Involve Emojis

March 11, 2019

The Verge reported recently that emoji are showing up as evidence in court much more frequently. Between 2004 and 2019, there was an exponential rise in emoji and emoticon references in US court opinions, with over 30 percent of all cases appearing in 2018, according to Santa Clara University law professor Eric Goldman, who has been tracking all of the references to “emoji” and “emoticon” that show up in US court opinions. That's a heck of a hobby!

So far, the emoji and emoticons have rarely been important enough to sway the direction of a case, but as they become more common, the ambiguity in how emoji are displayed and what we interpret emoji to mean could become a larger issue for courts to contend with.

Emoticons started appearing in court in 2004, and they have since been found most commonly in sexual predation cases. But that’s just counting the cases that were able to be tracked with the words “emoji” and “emoticon.” Electronic databases of court opinions aren’t set up to handle the actual emoji, and they aren’t displayed in case database services like Westlaw or Lexis, which is where Goldman finds his references.

More recently, emoji have overtaken emoticons, and they’ve shown up in all types of cases, from murder to robbery. In 2017, a couple in Israel was charged thousands of dollars in fees after a court ruled that their use of emoji to a landlord signaled an intent to rent his apartment. After sending an enthusiastic text confirming that they wanted the apartment, which contained a string of emoji including a champagne bottle, a squirrel, and a comet, they stopped responding to the landlord’s texts and went on to rent a different apartment. The court declared that the couple acted in bad faith, ruling that the “icons conveyed great optimism” that “naturally led to the Plaintiff’s great reliance on the Defendants’ desire to rent his apartment,” according to Room 404.

It’s rare for cases to turn on the interpretations of emoji. “They show up as evidence, the courts have to acknowledge their existence, but often they’re immaterial,” Goldman says. “That’s why many judges decide to say ‘emoji omitted’ because they don’t think it’s relevant to the case at all.” But emoji are a critical part of communication, and in cases where transcripts of online communication are being read to the jury, they need to be characterized as well instead of being skipped over. “You could imagine if you got a winky face following the text sentence, you’re going to read that sentence very differently than without the winky face,” he says.

The different depictions of emoji across platforms also poses a problem in judicial rulings. For example, depending on what type of phone you’re using, the “gritting teeth” emoji might look a lot different. Not only are emoji designed differently across smartphone platforms, but people interpret the same emoji differently. An earlier design of the grinning emoji on iOS, for example, was interpreted as being far more negative than the same emoji displayed on other platforms.

We run across emojis and emoticons all the time in our forensics lab. They are (unsurprisingly) quite prolific in cases involving adultery. And I'll leave it at that. 🙂

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