Evidence of Emojis in Court – Can An Emoji Support a Claim for Defamation or Harassment?

Emojis first appeared in Japanese mobile phones in the late 90’s, according to Wired. But emojis became widely used only after 2011, when Apple added an official emoji keyboard to iOS, and even more popular in 2013, when Android included emojis in their devices. Two years later in 2015, 😂 became the “word” of the year for Oxford Dictionary. Emojis are considered to be another language by some and consequently, emojis are now becoming more prominent within court cases. It’s not hard to understand why -- a picture is worth a thousand words and perhaps, the wrong words at the wrong time. 

Emojis are now being used as evidence in lawsuits across the county. Interpretation of certain emojis is now becoming  a hot topic of debate in courts across the country, according to CNN

“The number of reported cases with emojis as evidence in the United States increased from 33 in 2017 to 53 in 2018, and is at nearly 50 so far in the first half of 2019, according to Eric Goldman, a Santa Clara University law professor who monitors court opinions that are made public,” CNN Business reports. 

Because emojis are a newer concept, there are no court guidelines currently in place to aid judges or juries on how to address or interpret them. If someone sent a knife or a gun emoji, could it be considered a death threat? If an employer sent an employee heart emojis, would it be considered a form of sexual harassment? It’s often difficult to determine the definition of an emoji considering that certain emojis can be interpreted differently depending on the user and the circumstances. Juries across the country will now get the pleasure of deciding what meaning to give to emojis and what impact that has on the outcome of a particular case. 

Take for example, the issue of the eggplant emoji. Because of its shape, the eggplant has been considered the emoji symbol for a penis, so it has two completely different interpretations. But is repeatedly sending a photo of a vegetable considered a form of sexual harassment? What about the addition of the words: Do you want to see my [insert eggplant image]? Convincing? 

In Britain, an emoji was a key factor in deciding an Internet defamation case in 2013. In the case McAlpine v. Bercow, BBC reported that a conservative politician from the Thatcher years was one of the abusers in a publicized child sex abuse case. People who heard the report immediately connected Lord McAlpine to the allegations, according to Nicole Pelletier, author of “The Emoji that Cost $20,000: Triggering liability for Defamation on Social Media”. Many posted about the connection between Lord McAlpine and the sex abuse case on Facebook and Twitter, but one tweet in particular went viral. Sally Bercow, who had over 56,000 followers at the time, tweeted, “Why is Lord McAlpine trending? *Innocent face*” that was retweeted numerous times and consequently, viewed by many users. 

Later, news outlets confirmed that Lord McAlpine was falsely identified as a pedophile, primarily because of the Internet speculation. Outraged, Lord McAlpine threatened to sue BBC and any person who had tweeted insulating his involvement. According to Pelletier, Bercow denied any wrongdoing and did not think her tweet could be considered defamatory. Unfortunately for her, the court found that Bercow intended the innocent face emoji to be ironic and interpreted it as a way to make herself (the author of the tweet) to appear innocent when asking the question, “Why is Lord McAlpine trending?” 

In the end, Bercow agreed to admit fault after the court found her guilty of defamation and ended up settling for twenty thousand dollars - all over an emoji. 

Again one of the key issues with emojis is the ambiguity that even  a single emoji can convey. To make matters even more confusing, some emojis appear differently depending on what type of device you are using. According to CNN, a study conducted by the University of Minnesota found that certain emojis convey different emotions when viewed on an Android vs. an iPhone. Should our jury instructions take into consideration the use and interpretation of emojis? How much weight should a judge or jury give to emojis, if any at all? 

As defamation, criminal, and sexual harassment cases continue to include emojis, a universal guide to defining the multiple meanings of various emojis may help aid judges and jury members in making decisions for future cases to come. 

For now, always be mindful of what you say on the Internet, and in particular, how the use of emojis could be interpreted to your detriment. If you have experienced Internet defamation involving the use of an emoji, contact the experienced Internet defamation Lawyers at RM Warner Law. We know how to help. 





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