The big emoji conundrum.

17 July 2018 | Reading time: 3 minutes

Emoticons or ‘emojis’ are commonly used to express ourselves in messages. But what happens when emojis are used in communications which have legal consequences?

That smiley face may not be as innocent as you intend it to be and could cause real trouble for you if used carelessly.

Wait, what?

Emojis form part of everyday communications. While it’s easy to dismiss them as something sent in good fun, the frequency in which we use them has caused problems in how we interpret them.

The courts have been hesitant to answer firmly, but a few cases guide us on how they may be interpreted.

Emojis can be criminal.

As strange as it sounds, a few cases support the idea that communications using emojis can establish a criminal act.

For example, in New Zealand, a Facebook message saying ‘you’re going to f***ing get it’ accompanied with an ✈️ was deemed threatening, with the courts deciding it indicated he was ‘coming to get her.

The meaning of the emoji was largely derived from the words which preceded it – indicating context is important when courts interpret emojis.

What about contracts?

While there hasn’t been significant court discussion on the meaning of emojis in contractual dealings, an Israeli case may indicate emojis could at the very least constitute part of negotiations.

In that case, a couple was found guilty of bad faith dealings by sending a landlord an expression of interest in a property using emojis (such as 😁,  🍾 and 💃), then ignoring the landlord’s attempts to communicate with them: Dahan v. Shacharoff, 30823-08-16 (Herzliya Small Claims Court Feb. 24, 2017).

The court decided emojis constituted an expression of interest which the landlord was warranted in relying on.

Problem with emojis.

Courts have dealt with non-verbal language before. But emojis are unique and may cause legal uncertainty as their appearance differs depending on the device used to view them.

For example, what appears to be a smiling face on Samsung phones looks more like 😬 on Apple phones. Some emojis on one platform don’t exist on other devices – like the 🤡 on Samsung devices. These generally appear as a question mark.

So, what now?

Emojis have unique features which courts are struggling to translate.

Given this uncertainty, businesses should avoid using emojis in professional communications and legally binding documents.

Be friendly and cordial when talking to others – but don’t let that 😁 come back to bite you 😬!