Contributed by Alicia M. Canfield.
An increasing trend of cases are hinging on one little piece of evidence – emojis. What was once considered a childish trend, is now part of our daily lives, as everyone from politicians to business leaders on Twitter are now using emojis as a form of expression. The continued use of emojis as a form of non-verbal communication, while certainly not turning the legal system upside-down, is a rising issue that courts may not be prepared to address. The issue becomes: whose interpretation is the correct interpretation and what is the legal consequence?
Sometimes an emoji follows a stream of words, or it might be the only response sent, but what does it mean? If someone uses a winking face emoji when discussing personal relationships, is that a proposition? If someone uses a shushing face emoji, is that a threat to remain silent? If someone uses a heart eyes emoji with a coworker, is that harassment? If there is no emoji, is it important?
In addressing this issue, even though some emojis are self-explanatory, courts are allowing forensic linguists to be called as expert witnesses to analyze and provide translation of emojis and dialects in messages to aid juries in determining the intent behind the message. There is a wide body of case law that references emojis being presented by attorneys from both sides as evidence of guilt or innocence. Most of the opinions related to emoji evidence have been in criminal prosecutions, however, the interpretation of emojis has been debated in defamation cases, contract disputes, divorce cases, and criminal cases alike.
For example, in 2015, the defendant in Elonis v. United States, “Tone Dougie,” challenged his conviction on the basis that his use of a smiley face emoji with its tongue sticking out on his social media post was evidence that he was joking and not making serious threats. Elonis v. United States, 575 U.S. __ (2015). In another case, a tenant sent a landlord a stream of emojis including a
champagne bottle with a popping cork, dancing women, and a chipmunk, to which the landlord interpreted as an agreement to rent the apartment only to later be disputed.
With each person forming their own interpretation of emojis and the different styles of emojis depending on the type of phone used, courts and experts are facing a new challenge in the invasion of emojis and their importance in the courtroom. While we don’t currently have any clear guidance from the courts, emojis are likely to continue be used to add tone and personality to messages for juries to weigh when making their decision.
Our team at Miller | Butler is prepared to help with any questions or disputes you may encounter. If you are in need of an attorney, don’t hesitate to give us a call so one of our experienced attorneys can help you.
