Thumbs up: The Law’s approach to the rise of Emojis.
Just like the ancients with their hieroglyphics, in our modern society a great deal of what we have to say is communicated via odd little pictures.
Having evolved past being simple communication tools, emojis now stand as a form of self-expression, sparking cultural conversations and helping to establish stronger relationship bonds.
Emojipedia (yes, apparently that is a real thing) reports that over 10 million Australians send emojis on a daily occurrence, with around 6 million reporting that they feel emoji’s are generally better than the written word in expressing how they feel. Their importance in workplace and dating culture is undeniable, and with emoji use dominated by younger demographics their use (and by extension their acceptance in mainstream society) will only continue to rise.
In the law, where whole cases can turn on the interpretation of a single word (or point of punctuation), there is an increasing need to have a strong understanding of these modern symbols and their meaning.
Why so many Eggplants? - The Emoji Cases so far:
With so much of our lives now in the digital space, where use of these colourful little icons is second nature, it was inevitable that emojis would become an issue for the Court’s consideration. Emoji’s are increasingly being reviewed in a wide range of legal matters, including family law, criminal matters, revenge porn and online security, contracts, estate planning, and defamation.
Notable examples of the developing case law include:
· In a 2016 French case a man was convicted after sending ‘the gun’ emoji to his girlfriend. In the circumstances of the matter the Court regarded the sending of that emoji as a ‘visual death threat’.
· In the 2017 Queensland case of Re Nichol [2017] QSC 220 the Court held that an item found in the Deceased’s phone (in his draft messages) should be regarded as a valid will, even though it involved emojis. The message was named “Will 😊.”
· In a 2017 Israel case, a number of emojis sent between the parties via text message was enough evidence to establish that a rental contract had been negotiated and agreed upon.
· In the NSW case of Burrows v Houda [2020] NSWDC 485 an emoji was found to be capable of holding a defamatory meaning.
· Last month (June 2023) a Canadian Court ruled that the “thumbs up” emoji should be regarded as a digital signature in relation to a legally binding contract.
With such cases likely to increase over the coming years, it may be the case that “emoji experts” will be called upon to assist the Court in providing expert advice in relation to the current interpretation and cultural significance of a particular icon.
Principal solicitor, Kieran Abbotts forecasts the rising significance of emoji communication in legal dealings.
Think before you post- The Legal risks of using emojis
Before you start sending off streams of emojis we strongly suggest that you consider the following:
Emoji’s are very subjective in nature. One mans praying emoji is another’s man clapping emoji. While some may interpret a winky face as playful or an indication of good-natured teasing, another may interpret is as inappropriate or flirty.
Context is everything. Emojis are best used in conjunction with written text so that their intended meaning can be gauged in relation to the specific circumstances and broader matters being discussed.
Fluid meaning of emoji’s –The meaning of emoji’s have been known to evolve and change over time. What was once an innocent purple eggplant, is today … rarely used to advertise eggplants.
Combined Emoji use – different meaning may be intended when a number of emojis are combined to create a broader message.
Coding differences – Different platforms present emoji’s different. As a sender you may not be aware that the emoji you sent out was received in a different format. Different platforms sometimes amend their images, such as how Apple changed the gun emoji to be a more socially acceptable green water pistol.
The ever-expanding library of available faces, gestures, and miscellaneous symbols, colour our messages and allows us to convey an extra layer of personality and emotion. However they are not without complication.
In going about our daily use of emojis it is important to remember that they may have very serious legal implications – including in the areas of appropriate workplace behaviour, defamation, contract negotiations, family law, and even estate planning.
Should you have any questions in relation to your legal matters feel free to give our office a call so that we can help to get you smiling again.