Lawyers Face Challenges Interpreting Emojis

Chipmunks, kissy lips and champagne bottles are becoming bones of contention in legal disputes; a court considers the ‘:P’. Lawyers face challenges interpreting emojis

Lawyers gathered at the Atlanta office of a big law firm were debating a head-scratching legal question. What does the emoji known as the “unamused face” actually mean?
They couldn’t even agree that the emoji in question-it has raised eyebrows and a frown-looked unamused.

Unamused Emoji Face

“Everybody said something different,” recalls Morgan Clemons, 33 years old, a regulatory compliance lawyer at Aldridge Pite LLP who organized the gathering last summer at Bryan Cave LLP, called “Emoji Law 101.” She didn’t even know that’s what the emoji was named. “I don’t think many of us in the room ever thought that’s what it was.”

Emojis-tiny pictures of facial expressions or objects used in text messages, emails and on social media-are no longer a laughing matter for the legal profession. Increasingly, they are bones of contention in lawsuits ranging from business disputes to harassment to defamation. In one Michigan defamation dispute, the meaning of an emoticon, an emoji-like image created with text characters from a standard keyboard, was up for debate. A comment on an internet message board appeared to accuse a local official of corruption. The comment was followed by a “:P” emoticon.

The judges on the Michigan Court of Appeals concluded in 2014 that the emoticon “is used to represent a face with its tongue sticking out to denote a joke or sarcasm.” The court said the comment couldn’t be taken seriously or viewed as defamatory. A Michigan court concluded that a message-board comment that included an emoticon of a face with its tongue sticking out couldn’t be taken seriously or viewed as defamatory.

Puzzled lawyers are turning to seminars, informal meetings and academic papers to discern innuendo in seemingly innocuous pictures of martini glasses and prancing horses. Researchers at Deakin Law School near Melbourne, Australia, produced a 61-page study on the topic slated for publication in the April issue of an academic journal. Debra Katz, an employment lawyer in Washington, D.C., says she was stumped by a combination of emojis that included horses and one that “looked like a muffin” in text messages associated with a harassment case. She solicited opinions from her colleagues in the office about what it might mean. Her client told her it meant “stud muffin.” She says her client viewed the emojis as an extension of the alleged unwelcome advances at issue in the dispute. “There are no limits to the emoji possibilities,” Ms. Katz says. “The reality is people are just going to keep using their technology to communicate.”

Last year, emojis or emoticons were mentioned in at least 33 U.S. federal and state court opinions, according to research from Eric Goldman, a law professor at the Santa Clara University School of Law. That is up from 25 in 2016 and 14 in 2015. He’s already counted three this year.

The meaning of a red lipstick emoji is at issue in California legal dispute. Jon Pfeiffer, an entertainment lawyer in Santa Monica, Calif., is representing a producer in a dispute with her former business partner, a middle-aged man, who allegedly sent sexually explicit texts to a potential female employee. In one text, the potential employee responded with an emoji that depicts a red-lipstick kiss mark. There is now debate, Mr. Pfeiffer says, over whether that meant she approved of his advances or was politely trying to keep her distance. Lawyers in the case intend to ask the potential employee during a deposition what she wanted to convey, Mr. Pfeiffer says, who cautions that her answer might not resolve the debate. “It’s like the crying smiling face,” Mr. Pfeiffer says. “Is that laughing so hard that you’re crying, or is it something else?”

The study also discussed a case in Israel that involved a couple looking for an apartment. They texted a landlord a series of emojis, including a smiley face, a comet, a champagne bottle, dancing yellow Playboy bunnies and a chipmunk. The landlord believed, based in part on the emojis, that the couple had agreed to rent the apartment. He took down the listing, then sued them when they stopped responding to his messages.

It would appear that emojis are now a valid form of mainstream communication, which like words or other images, can send very clear meanings with intended (or unintended) consequences. So think carefully about the implications your next emoji may have! Happy texting.