News

Emojis and the Law

By Tracy Schorn

October 13, 2016

Cartoon smiley faces, clappy hands, eggplant . . . it's not just for Facebook anymore. Emojis, those cute little characters you find on your cell phone and social media apps, could be part of your next lawsuit.

crying laughing emoji  No, really.

"Emojis have changed how we present evidence," said Gabriella Ziccarelli, Blank Rome LLP associate, at the October 4 #LegalHack Emojis meet-up held by the group DC Legal Hackers.

The panel discussion, which also featured Robinson Meyer of The Atlantic and Joe Sremack of Boxer Analytics as speakers, examined how emojis have found their way into evidence because of their semantic value.

Relying evermore on mobile devices "is a big shift in how we communicate as human beings. Technology is forcing us to communicate in a nonverbal way," said Ziccarelli. "Emojis are a game changer for the legal industry."

questions emojiAn Emoji Primer

What is an emoji?

Emojis are computer renderings of characters and emotions that were created in the late 1990s by a Japanese company, NTT DoCoMo. Emojis evolved from emoticons, those typographical expressions like ;-), into fully realized graphics.

Who's in charge of emojis?

The Unicode Consortium, a nonprofit corporation that standardizes software and the representation of text internationally.

How many are there?

To date there are 1,851 recognized Unicode emojis. But they don't all work across all platforms. In Unicode 6.0 there were 722 standard emojis that worked across most devices.

What's new in emojis?

The Unicode 8.0 includes emojis with a diversity of skin tones, as well as new emojis like "nerd face" and "zipper face."

Does anyone really communicate wholly in emojis?

Yes. In fact, Herman Melville's Moby Dick was translated into emojis. It was accepted by the Library of Congress.

I'm totally confused. What's this other stuff?

Emoticons are made using typography like :-&.

Emojis are part of Unicode.

Bitmojis are emojis created by Apple that can be personally customized.

Stickers are graphics that appear for use on social media like Facebook and Instagram.

GIF is an image file that supports animation.

For more information, check out http://emojipedia.org.

There are two billion smart phone users worldwide, and over six billion emojis are sent each dayon mobile messaging apps, according to Swyft Media. These emojis are now being presented as evidence when they're used to communicate, bully, show affiliation, or even disavow previous communication with a winking "just kidding" face.

Ziccarelli mentioned several lawsuits where emoticons and emojis had affected discovery, search warrants, and jury trials.

For example, in Enjaian v. Schlissel Enjaian's threatening text messages containing an emoticon was one of the facts cited as cause for a search warrant. Enjaian argued that the omission of an emoticon he used would have shown that he was "deeply unhappy . . . rather than sadistically blood-thirsty for revenge." The court, however, saw his intent as threatening and found the search warrant valid.

Ziccarelli gave another example of law enforcement getting involved when school children send emoji "threats" of a gun, knife, and bomb with the message "Meet me in library." Were they being silly? Is it appropriate to respond as if emojis were threatening?

When it comes to discovery, emojis present difficulties for attorneys because they cannot be identified by keyword searches. Sremack said that in the data analysis he does for clients looking at SMS, iChat, and other messaging apps, 40 percent of the data is emojis. Much of this work is for legal discovery, but "our searches don't support emojis, emoticons, bitmoji, or stickers," said Sremack.

Attorneys need to be tech savvy, argued Ziccarelli, because those visual elements matter—they're important to how lawyers tell their clients' stories.

Another technical challenge is producing the rendered images with existing software because emojis are device-specific. For example, a pistol on one mobile device is a water gun on another.

"Context is essential," said Ziccarelli. Is that waving hand emoji really waving, or is it slapping someone?

Lawyers will have to figure out how to work with this new kind of visual communication and get it admitted into evidence. Presently, the court system has no way of uploading a GIF. Ziccarelli predicts that will change. "Nonverbal [communication] is king," she said.

Or  crown emoji