As professional speakers and writers, attorneys’ desire for precision and clarity urges us to find the single most accurate way to express a thought. And while clients may not have this compulsion, no expense has been spared when it comes to proving what the client meant when he or she said something. The need to ascribe definitive meaning has now reached the realm of emojis. The colorful symbols of Japanese origin took off globally when Apple began including them on the iPhone keyboard in 2011. As emoji popularity and usage continues to increase, they have trickled into courtrooms across the country, where judges must decide how to handle this new visual evidence.
During the 2015 trial of Ross W. Ulbricht, mastermind of the deep Web black market site Silk Road, U.S. District Court Judge Katherine B. Forrest ruled that it was important for the jury to view emojis alongside Ulbricht’s social media statements in order to see the complete posts as he wrote them.
Similarly, in a case of a man threatening his ex-wife on Facebook, the defense argued that his use of a smiling emoji at the end of the post showed that he was making the statements in jest. As these types of cases proliferate, they push the boundaries of current evidentiary rules.
Recently, the popular photo-sharing service Instagram debuted a new feature that may turn emoji interpretation from an art into a science. The ability to hashtag (#) a word or string of letters makes that word searchable on many social media sites. Instagram’s new emoji hashtag feature allows us to assemble common uses for emojis and their contexts. For example, the popular emoji of two girls dancing ballet is most often used not with photos of children or of dancing but with pictures evoking “best friendship” or “sisterhood.”
Thanks to Instagram’s searchable emoji hashtags, which will likely spread to Facebook and Twitter, future defendants may have a harder time arguing that the emojis they used had certain meanings where the data clearly shows different commonly accepted meanings. For example, imagine that a defendant’s text message of the eggplant emoji arises in a case of domestic abuse. The eggplant is located in the food and drink section of the Apple emoji keyboard and appears to be an innocuous, if cartoonish, purple vegetable. The defendant wants to argue that he was referring to a vegetarian dish he planned to make for dinner later. The plaintiff disagrees, asserting that she received the eggplant in a sexually threatening manner.
As always, both sides can introduce evidence of past conduct, prior text exchanges, etc., to bolster their interpretation of the meaning. But the Instagram data has the potential to dramatically shift the calculus away from the parties’ dueling subjective meanings to a societally objective one: The eggplant emoji is so frequently associated with photos of male genitalia that Instagram blocks users from hashtagging it. This evidence would make the defendant’s interpretation seem less likely.
The law used to be a discussion of the meaning of words, but today, words are being replaced at every turn by visuals. With the availability of data and analytics, measuring the usage of the succinctly shareable and expressive emoji is a boon to the lawyer’s interpretive arsenal.