Bay Area prosecutors were trying to prove that a man arrested during a prostitution sting was guilty of pimping charges, and among the evidence was a series of Instagram DMs he’d allegedly sent to a woman. One read: “Teamwork make the dream work” with high heels and money bag emoji placed at the end. Prosecutors said the message implied a working relationship between the two of them. The defendant said it could mean he was trying to strike up a romantic relationship. Who was right?
Emoji are showing up as evidence in court more frequently with each passing year. 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. 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. “We’re going to see emojis show up more frequently when the case involves people talking to each other,” Goldman says. In murder cases, emoji could be found in threats that took place between the defendant and the victim, and they serve as evidence that suggests the defendant’s state of mind or whether they had a propensity to commit the crime. “That can happen in criminal law, but it can happen in contract law as well. There’s a bunch of chatter that takes place before a contract is actually formed,” he says.
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.
Still, 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.
In the matter of the prostitution case, an expert specializing in sex trafficking was called in to testify. He said the high heels and bags of money supported the interpretation that the defendant was accused of sex trafficking, essentially translating to “wear your high heels to come make some money.” Another message from the defendant included the crown emoji, which was said to signify that the “pimp is the king.” Ultimately, the ruling didn’t hinge on the interpretation of emoji, but they still provided evidentiary support.
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.
Despite the potential for emoji to be interpreted in a wide array of ways, emoji experts don’t really exist. “Emoji usually have dialects. They draw meaning from their context. You could absolutely talk about emoji as a phenomenon, but as for what a particular emoji means, you probably wouldn’t go to a linguist. You would probably go to someone who’s familiar with that community, just like they did with the sex trafficking case,” Goldman says.
Although there weren’t any major rulings over emoji interpretation in 2018, Goldman still anticipates that more will come in the future. Referencing a study in which 20 percent of people reported that they would edit or not send a tweet after being shown how their emoji rendered across different platforms, he says those “millions of potentially regretful tweets” could inevitably cause some lawsuits. But for emoji to be interpreted in lawsuits, they need to start showing up in court opinions first and given proper consideration.
“Judges need to be aware of the importance of the emojis to the overall communication when we run into these odd evidentiary issues,” Goldman says. “We need to make sure that the emoji get proper credit.”
[Originally published in The Verge, Feb. 18, 2019]
