Legalese — Emojis and the Law

Last week I wrote about how spouting off on Facebook could be a potential felony.  This week, I’d like to get into another odd subject dealing with social media and emails – emojis.

It’s hard to imagine how a smiley face or a party hat or a (gasp) poop emoji could make a difference in a Court of Law, but more and more Courts are finding themselves having to figure out what meaning emojis bring to the written word.

For example, in the Federal Criminal trial of Ross W. Ulbricht in California, Mr. Ulbricht’s emails were used as evidence.  Federal prosecutors did not mention the emojis in the text when referencing what Mr. Ulbricht said.  Mr. Ulbricht’s lawyers said that the emojis were an important part of what he was trying to say – and that argument was ultimately successful.  The jury was instructed to consider the emojis in weighing that evidence.

I couldn’t find any Georgia cases that referenced “emoji” or “emoticon,” but a search of several states’ (and Federal) case law came up with cases from various jurisdictions such as Iowa, California, Texas, Michigan, and Louisiana.

Take this paragraph from State v. Shepherd, 2017 Ohio 328 (Ohio App. 2017) “First, as stated above, the record is devoid of the words of infidelity between Hursell and Rumker that Shepherd asserts.  Specifically, the only indication of this possible evidence is in Rumker’s testimony where she states that the ‘winky-face’ means that Hursell wants to sleep with her again.  Even viewing this evidence in a light most favorable to Shepherd, it is insufficient to convey words of infidelity and to find otherwise would require us to make an unsupported assumption of the emoji’s meaning.”

And then there is the whole level of analysis that comes from different operating systems.  The emoji called “grinning face with smiling eyes” in Apple’s iOS 6.0 depicts a face with clenched teeth and a straight mouth – what some might interpret as a grimace.  In iOS 10.0 the mouth is curved and appears happier.  So – if someone sends the text on iOS 6.0 and it is received in iOS 10.0 the meaning may change.  And when converting to Android – that’s another issue altogether.

It’s easy to see how these emoji’s might be used in a Courtroom.  “That winky face meant I was kidding!” “That smiley face meant I was just joking!”  “That poop emoji meant I disagreed!”

There aren’t, currently, universally accepted standards which we can use to interpret emojis.  Even if we generally consider an emoji to mean one thing or another, we can’t be assured that the person using or interpreting the emoji means the same thing.  Like the Ohio court said, we can’t “make an unsupported assumption of the emoji’s meaning.”  Was the winky face flirtatious?  Or did it mean the sender was kidding?  Or something else altogether?

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Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  No lawyer can advise you about your situation without hearing your particularized details.