Emoji—those little ideograms that have become ubiquitous in emails and text messages—can be fun, playful additions to our digital lives. However, emoji offer yet another chance for miscommunication that ends up in litigation.

Where did emoji come from?

The history of emoji (or “emojis,” if you prefer; either plural form is correct) is short but interesting. In 1982, Scott Fahlman, a computer science professor at Carnegie Mellon University, was frustrated by the limitations of the online bulletin board he and his colleagues were using. The problem? The medium only supported text (the ASCII symbols on the computer terminals of the day, to be precise), and thus did not always convey the emotional intent of posted messages. Jokes weren’t landing. Sarcasm and irony flew over heads.

Consequently, Fahlman suggested using what have come to be called emoticons (emotion + icon = emoticon), groupings of ASCII text symbols and punctuation marks that work as a humor or emotional signal. And so adding a colon-dash-close parenthesis (“:-)”) became the joke marker known as the “smiley.”

The idea soon exploded with the emergence of text messaging. The emotional shorthand enriched the language of a very restricted medium. In Japan in 1993, the emoticon took on an entirely different life with the creation of stylized picture versions. These emoji (Japanese for picture + letter) created a new pictograph language. This language now includes, according to communication and linguistics firm Idibon, nearly 1,300 images.

Emoji and miscommunication

All communication can be fraught with conflict caused by misunderstanding, misinterpretations, and missed subtext. This is true even with emoji, despite their original intent of clarifying the emotional content of messages.

Courts are beginning to deal with emoji, albeit reluctantly, while still grappling with how to handle the more standard electronic communications. People—employees, employers, co-workers, friends—are all lured by the informal nature of emoji, creating millions and millions of piece of data for lawyers to sift through.

Perhaps the highest profile case that’s dealt with emoji directly is the Silk Road trial. During the 2015 trail of Ross Ulbricht, the man convicted of running Silk Road—a $1.2 billion online bazaar dealing in illegal drugs—prosecutors read strings of text messages to the jury. Initially, they omitted the emoji, but, after a defense objection, the judge ordered the jury be informed of the symbols. “That is part of the evidence of the document,” she said, as reported by The New York Times. Without the emoji, the defense argued, the messages were incomplete.

Emoji and the Supremes

Emoji landed in the US Supreme Court in Elonis vs. United States. In that case, a “self-styled” rapper posted graphic and violent rants against his wife and others on social media. At trial, his lawyers argued that the tongue-out emoticon (:-p) signaled that he was joking or engaging in hyperbole just meant to shock. The lawyers asked, unsuccessfully, for a jury instruction that required intent to be considered as part of a “true threat.”

In its June 2015 opinion, the Supreme Court disagreed with the trial judge’s decision to deny the instruction, and remanded the case to the lower courts. The Supreme Court did not have to address the question of the emoticon directly, but were clear that information related to the mental state of the accused threat-maker was relevant information for the jury.

Emoji popped yet again in the courts when a school administrator in Michigan filed suit after being fired. The suit cited multiple wrongdoings, one of the biggest of which was a defamation claim against a co-worker who had posted anonymously on a message board. The case has bounced back and forth between an arbitrator and the courts, but on the issue of defamation, an appeals court addressed the issue of the tongue-out emoticon as a signal of sarcasm. The Court quoted an earlier case, Ghanam v Does, from 2014:

“The joking, hostile, and sarcastic manner of the comments, the use of an emoticon showing someone sticking their tongue out . . . were made facetiously and with the intent to ridicule, criticize, and denigrate plaintiff rather than to assert knowledge of actual facts.”

Bottom Line

“Emojis help enrich and improve our expressiveness,” notes Tyler Schnoebelen, chief analyst at Idibon, in a blog on the company’s website. But they are subject to interpretation, as he discussed in an interview with radio station KCBS, excerpted on the blog: “People want individual words and symbols to take literal meaning. But that’s not how language works.”

Especially, it seems, if that language is a string of pictographic faces, foods, or symbols.

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