Written By: Mary Margaret Clark
Member, American Journal of Trial Advocacy
There is something happening that very few in the legal profession saw coming: emojis. Tiny pictures of facial expressions used in text messages and social media are now becoming the subject of legal disputes. The lawsuits involving the images are spanning from business transactions to harassment claims to actions for defamation. Emojis are typically used to provide context in a text message by “standing in for facial expressions” and can sometimes be used as a filler for an entire word. Although emojis have the potential to offer clarity to messages, the legal profession has seen the opposite as it begins to decipher the intent behind emojis.
The number of cases that mention emojis in the United States has doubled in only two years, growing from about fourteen in 2015 to at least thirty-three in 2017. Eric Goldman, a law professor from Santa Clara University, has seen three cases involving emojis just this year. It is true that “[t]here are no limits to the emojis possibilities. . . people are just going to keep using technology to communicate” and the pop culture phenomenon of emojis is likely here to stay. Therefore, with its increasing popularity, many are raising their eyebrows in light of how emojis will be handled in the courtroom in the future. It is more imperative now than ever to consider the evidentiary value that emojis can provide.
Emojis as Evidence in Criminal Cases
One of the most important questions centered around emojis in criminal cases is: Should the symbols that people use in their text messages and social media posts be interpreted as “literal portrayals of the sender’s thoughts and intentions for purposes of criminal conviction?” Prosecutors have begun to focus on emojis of guns, knives, and explosives as “evidence of intent to commit mayhem.” Although emojis may not be the ‘nail in the coffin’ for most criminal cases and convictions that involve the use of the images, it is still an important topic for attorneys who wish to bring the emojis in as evidence during trial. If emojis are found to be so unambiguous in their meaning, then criminal defendants might take heed of their use of emojis in all aspects of social media as it relates to their crimes.
Emojis in Civil Cases
Emojis can often play a vital role in cases regarding libel. The use of emojis at the end of what some would deem to be a defamatory statement could be found not to be defamatory at all because of the addition of the emoji. Consequently, what would have been a statement made with malicious intent could become a statement with a sarcastic tone that is neither malicious nor defamatory at all.
A Michigan court has already considered the question of whether the use of an emoticon, (a symbol similar to an emoji), at the end of what would otherwise be a defamatory statement, is an obvious joke. This case in particular involved a plaintiff who was a deputy superintendent of public works in the city where he lived. A forum had been created wherein defendants, under anonymous and fictitious names, posted “false and malicious statements about plaintiff.” The plaintiff then filed a complaint alleging one count of defamation per se. One of the alleged defamatory statements stated, “[t]hey are only getting more garbage trucks because [plaintiff] needs more tires to sell to get more money for his pockets :P.” The court did not find this statement defamatory because “the use of the ‘:P’ emoticon [made] it patently clear that the commentator was making a joke.” The court further explained that the “:P” emoticon denotes jokes and sarcasm. Therefore, with the use of one emoticon, a possible defamatory statement could be found to have been sarcastic. Does this mean that anyone can post a defamatory statement, add an emoji or emoticon at the end, and a court would find it to be sarcastic or a joke, thereby relieving the declarant of liability? This, and many others, is the implication of emojis in defamatory cases.
The phenomena of emojis has even made its way into the contract realm. In a federal court case involving a high-end bag and accessory company, Dooney & Bourke, the court noted that the use of a smiley face emoji insinuated casual communications that had occurred between the plaintiff company’s president and the defendant. Therefore, the emoji that was used in the communication between the parties was taken into consideration, among other factors, and the court ultimately ruled that the contract was unenforceable. This highlights the fact that using emojis and emoticons in emails included in the discussion of contracts could be found to be void, but because there is no uniform method of deciphering the intent of emojis, the contract could be upheld in some jurisdictions.
There has also been discussion about problems that may result from emojis used in the documentation of real estate transactions. Although hypothetical, it is easy to imagine an emoji depicting a handshake, thumbs-up, or even the hand holding a pen being sent during the negotiation phase of a real estate transaction. Thus it may be an area in which counsel, who negotiates deals electronically, would advise their client to not send any kind of emoji as its use may be “accompanied by unequivocal language.”
Harassment and Discrimination in the Workplace
Emoticons, the predecessor of emojis, have also been worth mentioning in harassment claims in the workplace. The Delaware Chancery Court previously grappled with the issue of an emoticon in a sexual harassment suit. That case revolved around an ongoing feud between long term business partners, during which time the defendant allegedly harassed his co-CEO plaintiff. The court found “the smile-face emoticon at the end of [defendant’s] text message suggest[ed] he was amused by yet another opportunity to harass [the plaintiff]. . . .” The Delaware judge, therefore, found the relationship had deteriorated to the extent that a custodian was necessary to be appointed to sell the business. The result of the case did not ultimately rest on the use of the emoticon in the text message, but it was addressed by the court and found it to have furthered the dispute between the parties.
Discrimination claims involving the use of emojis have also been an issue in workplace emails. For instance, an Ohio court was faced with the question of whether the use of “frowning emoticons in emails related to plaintiff’s performance connoted an ill-will or malice toward him.” The trial court held that, although the use of emoticons in emails related to the plaintiff’s performance could have been seen as “unprofessional or immature,” the opinions expressed in the emails in conjunction with the emoticons “[did] not give rise to the level of malice, bad faith, or reckless conduct.”
Looking Forward with Emoji
The uncertainty of how an emoji will be understood is the problem that remains for the everyday user of emojis and emoticons. A British court’s finding of an emoji as a source of liability has spurred the question of whether the use of an emoji would “trigger liability in the United States.” As the number of cases continues to rise, it seems as though the United States does not yet know how to answer the question of emojis. Further, there may be a disparate impact if emojis are interpreted one way in a certain jurisdiction and are given a completely different meaning in another.
Perhaps an “emoji dictionary” should be created or certain contexts or platforms should begin to warn people about potential miscommunications that could arise if they use the symbols. There is also the possibility of Congress enacting legislation that would bring clarity to the meaning of emojis used in text messages, emails, and social media. No matter what method is created to combat the uncertainty of the symbols’ interpretation in courtrooms, one thing is for sure, trial lawyers can no longer overlook emojis.
 Mike Cherney, Lawyers Faced With Emojis and Emoticons Are All ¯(ツ)/¯, The Wall Street Journal (Jan. 29, 2018 11:39 AM), https://www.wsj.com/articles/lawyers-faced-with-emojis-and-emoticons-are-all-1517243950?mod=searchresults&page=1&pos=1.
 John G. Browning & Gwendolyn Seale, More Than Words The Evidentiary Value of Emoji, 57 DRI for Def. 34 (2015).
 Tanya M. Kiatkulpiboone & Andrea W. Paris, Emoji and Deciphering Intent in the Digital Age, 59 Orange County Law. 42, 42 (2017).
 Cherney, supra note 1.
 Kiatkulpiboone & Paris, supra note 4.
 Mark Walsh, Emojis Head to a Courthouse Near You, 103-OCT A.B.A. J. 11 (2017).
 Brian Sullivan, ‘Just Kidding’;), 102 A.B.A. J. 71 (2016).
 Browning & Seale, supra note 3.
 Ghanam v. Does, 895 N.W.2d 128, 145 (Mich. Ct. App. 2014).
 Id. at 132.
 Id. at 145.
 Ghanam, 895 N.W. at 145.
 See Parcel Mgmt. Auditing and Consulting, Inc. v. Dooney & Bourke, Inc., No. 3:13-CV-00665(JAM), 2015 WL 796851, at *1 (D. Conn. Feb. 25, 2015) (including the picture of the emoji used in the email to show the casual nature of the communications between the parties.)
 Id. at *4.
 Kiatkulpiboone & Paris, supra note 4, at 46.
 See Scroggin v. Credit Bureau of Jonesboro, Inc., 973 F. Supp. 2d 961, 976 (E.D. Ark. 2013) (noting a text thread that included harassing messages including one that said “[s]o walk into that federal courtroom with me and get ready for the biggest [train wreck emoticon] ever.”).
 In re Shawe and Elting LLC, C.A. No. 9661-CB, 2015 WL 4874733, at *23 (Del. Ch. Aug. 13, 2015).
 Id. at 31.
 See Arnold v. Reliant Bank, 932 F. Supp. 2d 840, 854 (M.D. Tenn. 2013) (discussing a woman who claimed she was discriminated against on the basis of gender and also alleged a hostile work environment, but the court mentioned a smiling emoticon in her annual self-assessment form about her job satisfaction).
 Kara v. Ohio Dept. of Taxation, No. 2012-03794, 2014 WL 713335, at *7 (Ohio Ct. Cl. Feb. 21, 2014).
 Nicole Pelletier, The Emoji that Cost $20,000: Triggering Liability for Defamation on Social Media, 52 Wash. U. J. L. & Pol’y 227, 231 (2016).
 Walsh, supra note 9.
 See Pelletier, supra note 35, at 251 (“Congress must enact new federal legislation that comprehensively addresses social media offenses.”).