Emojis in litigation: Adding unpredictability and ambiguity to electronic communications
14th Jun 2018
A recent US article (by Mike Cherney in the Wall Street Journal Online) drew attention to the increasing prevalence of emojis in litigation. Emojis (or ‘emoticons’) are of course the thumbnail drawings, usually of a stylised face but also of other objects, which can easily be inserted into emails or text messages.
Should we be surprised at the intrusion of the emoji into litigation in which, obviously, electronic communications are being scrutinised? Probably not.
What is an emoji?
The simplistic response, given above, is a little face (although there are plenty of other kinds, very notably the ‘thumbs-up’ or ‘thumbs-down’ symbols). However this doesn’t really answer the question.
Emojis are really a specialised form of written language, and their general purpose is to add shades of meaning, or perhaps even very specific messages, to what we write.
Spoken language includes a vast range of options for conveying and enhancing meaning. We can yell, or speak softly. We can speak formally and abruptly, or appealingly, cajolingly, or even in a sexually suggestive manner. We can raise our eyebrows; frown; smile; shrug our shoulders; wave our hands about or even stick our tongues out. So people tend to assume written language, by contrast, is somehow neutral and bereft of nuances. But it’s not.
Emphasis in written language
The most obvious means of conveying emphasis in written language is to italicise important things; perhaps to write them in bold type; or perhaps even to use UPPER CASE LETTERS.
Additionally, ordinary punctuation marks can add nuances of meaning. A question mark following a statement can convey that the writer is making a statement, but is sending a message that he or she may not be entirely sure whether it’s true.
Even odder is the exclamation mark. If I receive a response to a communication much later than I had requested, ‘your reply was very late!’ conveys a touch of annoyance. However if I receive a reply almost instantly, ‘your reply was very late!’ is a tongue-in-cheek way of expressing appreciation of the promptness, with the exclamation mark added to show that what I have said was intended to be light-hearted, and to guard against misinterpretation of what I’ve said as being a criticism. But the two responses are exactly the same.
So we need to accept that written language is also flexible enough to convey shades of meaning, and it is accordingly important to take care with what we write.
Adding emojis for emphasis
Almost everyone approaches electronic communications – emails, text messages, and social media posts – as though they were informal conversations rather than formal letters. This is where care needs to be exercised.
For some time it has been accepted, in cases about workplace bullying, that CHUNKS OF EMAIL TEXT IN UPPER CASE LETTERS was ‘yelling by email’, and could be construed as forming part of a pattern of bullying. Emojis can, obviously, have a similar effect by adding a very obvious emphasis to the message. The common face with a protruding tongue, typically used to show sarcasm or light-heartedness, can obviously also be seen as rude and insulting.
An added complexity with emojis, however, is that the images are so compressed that it can be difficult to discern exactly what is being depicted. In the US article referred to, there was debate over a ‘crying smiling face’ as to whether it was meant to convey disappointment, or crying with laughter.
In another case, a woman jobseeker replied to a sexually suggestive message from a male employee of the business, with an emoji prominently featuring kissing lips. This sparked debate as to whether the woman was responding approvingly to the message, or was offended and simply trying to defuse the situation as politely as possible.
On top of this, a receiving mobile phone with an operating system different from that of the sending phone may not recognise the emoji, and thus render it as a question mark in a frame like a road sign, potentially putting a totally different spin on the message.
Taking care with electronic communications
Long before the emergence of the emoji, the uncontrollable nature of emails required a standard of care higher than that required with the posted letter. Extraordinary circumstances aside, a posted letter will only reach the person you sent it to. An email can end up anywhere, as can a text message, tweet or other social media post.
With a posted letter, you only need to ask yourself how the recipient might interpret it, especially if you say something intended as sarcasm or cheeky humour. With electronic communications, the question is whether some complete stranger would understand that humour was intended.
What’s more, it’s almost impossible to eradicate an electronic communication. Although President Trump quickly deleted the offending tweet, the nonsense word ‘covfefe’ – apparently a misspelling on his part while tired – has now entered the language.
You should also ask yourself whether there is any prospect of what you have written ending up being scrutinised by a court or tribunal, or having some other kind of legal consequence. Obviously, the overwhelming bulk of electronic communications will never see the inside of a courtroom, but if they do the results can be serious.
And this is the dilemma with emojis. It has been pointed out that ordinary punctuation can be ambiguous. With emojis, there is not only the risk (as there is with punctuation) that a very clearly identifiable emoji can still be interpreted in more than one way; but also that the picture itself may be misunderstood, leading to a completely unintended interpretation.
In summary, emojis can be useful and even endearing. But they add another dimension of unpredictability to communications already requiring much more caution than ‘snail mail’.
A version of this article first appeared on the Stacks Law Firm website, and can be found here.
Geoff Baldwin is a lawyer in the employment law team at Stacks Champion. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).