Emojis have become an important form of evidence in legal disputes. This is evident from the growing number of court cases over the past several years that have addressed issues relating to emojis. While some might scoff at the notion that a grinning, yellow-faced icon 😀 or a “thumbs up” 👍 might constitute admissible evidence, lawyers are increasingly confronting the reality that they need to know how to preserve, analyze, and present emojis as evidence in court.
Thankfully, there are experts such as Professor Eric Goldman from Santa Clara Law who have thoroughly analyzed the issues with emojis and who can spotlight key concerns that counsel and courts should understand. One of the country’s leading experts and legal scholars on Internet Law, Professor Goldman is renowned for his work on emojis. The Washington Law Review recently published his groundbreaking article about emojis entitled Emojis and The Law. Professor Goldman’s Technology & Marketing Law Blog includes frequent updates on cases that have ruled on issues involving emojis. He even maintains an emoji case digest, which reflects the growth of decisions relating to emojis over the past several years.
I recently had the chance to speak with Professor Goldman and listen to his views on a variety of issues relating to emojis.
I started doing Internet Law in the early 1990s. In those days, there was a lot of scholarly discussion about “Internet exceptionalism”—that is, whether then-existing laws could govern the Internet, or if the Internet is unique, special, or different such that new regulatory approaches are needed. As an Internet law scholar, I constantly look for—and try to resolve—exceptionalism issues.
As part of my ongoing research, I ran across a reference to emoticons in a legal opinion. It sparked my curiosity about how often emoticons and emojis showed up in court, and if they raised any exceptionalist issues. This sent me down the path of thinking about emoji exceptionalism.
Lawyers and judges should realize that emojis don’t look the same across platforms or over time. As a result, it’s imperative that lawyers and judges see any emojis as the sender and receiver actually saw them on the platforms they were actually using—not as they appear on the lawyer’s screen years later, and not how some other platform might depict them in the abstract. Because emoji depictions can vary so widely, it’s quite possible that the specific emojis sent by senders or received by recipients will have details that could matter a lot to the case.
Because the exact depiction is so important, judges should include the actual emojis in their opinions. Judges definitely should not textually characterize the emojis (for example, there are about a dozen different versions of the smiley) or skip the emojis altogether. Where the sender and recipient saw two different depictions, a well-drafted legal opinion will show both.
Judges and lawyers also should be open to expert testimony about emojis’ meanings. Like any other communication symbol, emojis can develop niche or slang meanings that will not be obvious to people outside the relevant community.
Not exactly, but the Silk Road trial provided one example of evidentiary problems with emojis. At the trial of the Silk Road service operator, text messages were admitted as evidence, and they included emojis. However, to keep irrelevant material from the jury, the text messages were read orally by the prosecutor rather than shown as visual exhibits. Initially, when the prosecutor read the messages, the prosecutor just skipped over the emojis. The defense objected, and the judge agreed that the emojis should be orally referenced during the recitation of the text messages. This is better than skipping the emojis altogether, but the oral characterization will be imprecise (which smiley?), will rely on the jury’s mental images of emojis (which vary widely across platforms), and allow for the introduction of vocal inflection and possibly body language to influence the interpretation of the emojis. While I’m sure there were good reasons why the text messages were not made freely available to the jury, it would have been much better to provide the jury with the visual depictions of the emojis rather than trying to orally characterize them.
First, emojis are not easily searchable via standard text/data mining tools. It may be rare when either party wants to search for the emojis, but it does create some potential blind spots for both sides.
Second, there are several technical reasons why the delivered discovery materials will change or omit the emoji depictions, and this could become critical to the case. That smoking gun message will look a lot different if there was actually a winky attached to it. If delivered electronically, there is no guarantee that the emoji as depicted now is what the sender/recipient actually saw at the time. If delivered in paper, it’s possible/probable that the emoji will be omitted or possibly replaced with a different depiction by the printer. So when laying out a discovery plan, it would be advisable for litigators to ensure the integrity of the emoji depictions in the process.
As tough as it is now to make sure we’re evaluating the right version of an emoji, it will only get harder in the future. We think of emojis as static and pre-defined images, but platforms are giving users the ability to animate and customize emojis (such as Apple’s animojis and Samsung’s AR emojis). As a result, it will get even harder for litigators to recreate and preserve the actual emoji depictions seen by the users; and to do so, litigators will have to understand the technological attributes of emojis on each platform at issue.