Photo Credit: https://slate.com/technology/2015/10/emoticons-and-emojis-as-evidence-in-court.html | Photo illustration by Juliana Jiménez | Photo by Deborah Cheramie/Thinkstock.
Authored By: Dylan Patel
September 22, 2023
Nowadays, most Americans use emojis in everyday conversations.[1] But how do courts analyze and interpret such symbols? As emojis and emoticons appear in court filings and make their way into evidence, it is the court’s ultimate duty to determine the meaning and significance of these expressions. However, as Professor Eric Goldman of Santa Clara University School of Law explains throughout his work, emojis may convey different meanings in different contexts.[2]
The use of emoticons first appeared as text characters were ordered and combined to create expressions of a smiley face or a frowny face, i.e., 🙂 and 😦 respectively.[3] In the 2000s, the iPhone first picked up steam in the United States and emoticons were essentially digitized into more visual characters: emojis.[4] As a result of these popular symbols being utilized and in everyday communications, it was inevitable that emojis would eventually come before the courts for interpretation. All legal practitioners should be aware of the possible implications of emoji interpretation, as such analysis may be the deciding factor in a court ruling in favor of his or her position.[5] Ultimately, lawyers must inform courts of the emoji’s context. For example, a “sunglasses” emoji might mean a sunny day or just feeling cool at that moment.[6]
The first case referencing emoticons was Microstrategy, Inc. v. Business Objects, S.A., an Eastern District of Virginia opinion with mention of a “spy” in combination with a smiley face emoticon.[7] In this case, the Court did not delve into “why” such a decision was held beyond industry norms. Nonetheless, Microstrategy, Inc. paved the path toward using emojis as evidence in future proceedings.[8]
In the more recent case of State v. D.R.C., questions arose from the use of emojis in conversations between D.R.C., a minor child, and her friends regarding D.R.C.’s plans to murder her mother.[9] Numerous text messages were sent from D.R.C. to different friends of with talks about killing her mother, as well as various “LOL” and laughy face emojis mixed in.[10] In fact, D.R.C. even went as far as to say, “imma f***ing take her life or slam her face in the wall if she’s lucky.”[11] In this case, the Court construed the various emojis and text conversations together in context with D.R.C. talking to her friends.[12] In addition, the Court noticed the lack of actual reactions present in response to D.R.C.’s texts.[13] The fact that D.R.C. prefaced her “imma f***ing kill this bitch” text with a “face with tears of joy” emoji effectively negated the establishment of a genuine threat.[14] Finally, the Court used previous text messages between D.R.C. and her friends as further evidence that both parties exchange similar emojis within sarcastic conversation when talking about harming or killing those they know.[15]
Another example comes from the Southern District of New York, where the defendant advertised various non-fungible token (“NFTs”) investment opportunities by pairing such offerings with emojis known to “expect a profit.”[16] The defendant would show advertisements on social media platforms and include the following emojis: “rocket ship,” “stock chart,” and “money bags.”[17] In this case, the Court used a commonsense approach to determine the emojis used in the advertisements clearly indicated that consumers were to expect a profit should they partake in the defendant’s offers.[18]
From the two case illustrations above, it becomes clear that courts need context to determine which emoji meaning to use and what facts are relevant to the analysis. But how do emojis and emoticons come before the court in the first place? There are two methods: (1) the nature of the lawsuit (subject matter),[19] and (2) through the myriad of evidentiary documents in which emojis happen to be used.[20] Ultimately, it is up to the attorney to show the courts why their interpretation of the emoji makes sense instead of a variation. Another example is the “rolling eyes” emoji. This emoji could mean someone is missing the point or it could be used playfully.[21] Another wrinkle is that emojis look different on different devices. Other than the basic standardized emojis through the Unicode Consortium (a non-profit dedicated to standardizing software standards and data), most emojis have no standard look or characterization to them.[22]
One final case illustration, In re Bed Bath & Beyond Corp. Sec. Litig., involved various messages by Ryan Cohen on social media platforms with the “smiley moon” emoji.[23] This emoji was understood to portray the holding and/or buying of stock in order to send the stock price “to the moon.”[24] The Court ruled against Cohen, providing valuable analysis of why they did so.[25] Simply put, the use of the “smiley moon” emoji had a particular meaning which caused investors to purchase Bed Bath & Beyond stock, meaning Cohen was confident in the price increase.[26] Thus, the Court held that the “smiley moon” emoji was actionable as securities fraud.[27]
In conclusion, be careful about emojis being present in evidence. All attorneys should tread carefully when crafting arguments for or against a particular meaning of an emoji. Context is the most advantageous. Utilize the surrounding facts and previous interactions to supplement the meaning you are trying to argue. The subjective nature of emojis practically requires a thorough investigation into all possible meanings in context to ensure a solid argument in favor of your client’s position.
[1] See Alexa Blaise, Your Emoji Can Be Used Against You, 47 Vt. Bar J., 3, 36 (2021) (“92 percent of the online population uses emojis and 2.3 trillion mobile messages incorporate emojis each year.”).
[2] See Heather King, Emojis and Emoticons: How Courts and Litigators are Dealing with Interpretation of Digital Wordless Communications, American Bar Association (Jan. 1, 2022),https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2022/jf22/king/; Eric Goldman, https://law.scu.edu/faculty/profile/goldman-eric/ (last visited Sept. 21, 2023).
[3] See Emoticon, Merriam-Webster (2023) (defining “emoticon” as “a group of keyboard characters . . .that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications (such as email)”), https://www.merriam-webster.com/dictionary/emoticon (last visited Sept. 21, 2023).
[4] See Emoji,Merriam-Webster (2023) (defining “emoji” as “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 Sept. 21, 2023).
[5] See Golriz Chrostowski, ANALYSIS: Getting Emojis Into Evidence Is No Laughing Matter, Bloomberg Law (Aug. 8, 2023), https://www.bloomberglaw.com/bloomberglawnews/bloomberg-law-analysis/BNA%2000000189b167d8d9a1ffbdffff9e0001?bna_news_filter=bloomberg-law-analysis.(“Practitioners should not overlook the power of emojis to support or defend against a claim at trial . . . [they] might just prove vital to your case.”).
[6] See King, supra note 2 (describing other situations which lawyers need to provide courts context to interpret emojis such as a “rat” emoji implying a disloyal character or an actual rodent).
[7] See Chrostowski, supra note 5; 331 F. Supp. 2d 396, 404 (E.D. Va. 2004) (explaining that the spy reference accompanied by the smiley face emoticon was “common in any industry and does not necessarily constitute the misappropriation of a trade secret”, i.e., a playful email interaction.).
[8] 331 F. Supp. 2d at 404.
[9] See 467 P.3d 994, 998 (Wash. Ct. App. 2020).
[10] State v. D.R.C., 467 P.3d at 998.
[11] Id. at 999.
[12] Id. at 1001 (“We [the Court] instead must ask whether a reasonable person in D.R.C.’s position would have foreseen that either Joshua or Lexy would have interpreted D.R.C.’s texts as true threats, as opposed to merely a joke or an expression of emotion.”) (alteration in original).
[13] Id.
[14] See id. at 1001 (explaining that D.R.C. might have sent these texts to her friends as a response of teenage frustration, but not actual intent to kill) (alteration in original).
[15] Id. (“The combination of the initialism [like “LOL”] and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.”).
[16] See Friel v. Dapper Labs, Inc., 21 Civ. 5837 (VM), 2023 WL 2162747, at *1 (S.D.N.Y. Feb. 22, 2023).
[17] Id. at *17 (“Emoji objectively mean one thing” a financial return on investment.”).
[18] Id. at *17; see S.E.C. v. Edwards, 540 U.S. 389, 395 (2004) (explaining that consumers and investors are motivated simply by a profit or financial return on their investments).
[19] See Blaise, supra note 1 at 36 (explaining that an emoji may appear in a court system due to the “subject matter of a lawsuit, such as a copyright or trademark infringement issue”).
[20] Id. (showing that a person’s character may be proven or evidenced by such person’s emoji use).
[21] Id. (showcasing different emojis and how they have many meanings).
[22] Id; see The Unicode Consortium, https://unicode.org/consortium/consort.html (last visited Sept. 21, 2023).
[23] See No. 1:22-cv-2541, 2023 WL 4824734, at *2 (D.D.C. July 27, 2023) (explaining the online communities do interpret the “smiley moon” emoji to mean the holding and buying of a stock to make the price go up).
[24] See In re Bed Bath & Beyond Corp. Sec. Litig., 2023 WL 4824734, at *2.
[25] Id. at *5 (holding that emojis are symbols that require context and tone to help ascertain meaning as “just because language can be ambiguous does not mean it is not actionable or capable of being correctly understood”).
[26] Id. at *6 (“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.”) (emphasis added).
[27] See id. at *5.
American Journal of Trial Advocacy 