Kirk Johnson, MJLST Staffer
In 2016, the original 176 emojis created by Shigetaka Kurita were enshrined in New York’s Museum of Modern Art as just that: art. Today, a smartphone contains approximately 2,000 icons that many use as a communication tool. New communicative tools present new problems for users and the courts alike; when the recipient of a message including an icon interprets the icon differently than the sender, how should a court view that icon? How does it affect the actus reus or mens rea of a crime? While a court has a myriad of tools that they use to decipher the meaning of new communicative tools, the lack of a universal understanding of these icons has created interesting social and legal consequences.
The first of many problems with the use of an emoji is that there is general disagreement on what the actual icon means. Take this emoji for example: 🙏. In a recent interview by the Wall Street Journal, people aged 10-87 were asked what this symbol meant. Responses varied from hands clapping to praying. The actual title of the emoji is “Person with Folded Hands.”
Secondly, the icons can change over time. Consider the update of the Apple iOS from 9 to 10; many complained that this emoji, 💁, lost its “sass.” It is unclear whether the emoji was intended to have “sass” to begin with, especially since the title of the icon is “Information Desk Person.”
Finally, actual icons vary from device to device. In some instances, when an Apple iPhone user sends a message to an Android phone user, the icon that appears on the recipient’s screen is completely different than what the sender intended. When Apple moved from iOS 9 to iOS 10, they significantly altered their pistol emoji. While an Android user would see something akin to this 🔫, an iPhone user sees a water pistol. Sometimes, an equivalent icon is not present on the recipient’s device and the only thing that appears on their screen is a black box.
Text messages and emails are extremely common pieces of evidence in a wide variety of cases, from sexual harassment litigation to contract disputes. Recently, the Ohio Court of Appeals was called upon to determine whether the text message “come over” with a “winky-face emoji” was adequate evidence to prove infidelity. State v. Shepherd, 81 N.E.3d 1011, 1020 (Ohio Ct. App. 2017). A Michigan sexual harassment attorney’s client was convinced that an emoji that looked like a horse followed by an icon resembling a muffin meant “stud muffin,” which the client interpreted as an unwelcome advance from a coworker. Luckily, messages consisting entirely of icons rarely determine the outcome of a case on their own; in the sexual harassment arena, a single advance from an emoji message would not be sufficient to make a case.
However, the implications are much more dangerous in the world of contracts. According to the Restatement (Second) of Contracts § 20 (1981),
(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and
(a) neither party knows or has reason to know the meaning attached by the other; or
(b) each party knows or each party has reason to know the meaning attached by the other.
(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if
(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or
(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.
Adhering to this standard with emojis would produce varied and unexpected results. For example, if Adam sent Bob a message “I’ll give you $5 to mow my lawn 😉,” would Bob be free to accept the offer? Would the answer be different if Adam used the 😘 emoji instead of the 😉 emoji? What if Bob received a black box instead of any emoji at all? Conversely, if Adam sent Bob the message without an emoji and Bob replied to Adam “Sure 😉,” should Adam be able to rely upon Bob’s message as acceptance? In 2014, the Michigan Court of Appeals ruled that the emoticon “:P” denoted sarcasm and that the text prior to the message should be interpreted with sarcasm. Does this extend to the emoji 😜😝, and 😛, titled “Face with Stuck-Out Tongue And Winking Eye,” “Face With Stuck-Out Tongue And Tightly-Closed Eyes,” and “Face With Stuck-Out Tongue” respectively?
In a recent case in Israel, a judge ruled that the message “✌👯💃🍾🐿☄” constituted acceptance of a rental contract. While the United States does have differing standards for the laws of contracts, it seems that a judge could find that to be acceptance under the Restatement of Contracts (Second) § 20(2). Eric Goldman at the Santa Clara University School of Law hypothesizes that an emoji dictionary might help alleviate this issue. While a new Black’s Emoji Law Dictionary may seem unnecessary to many, without some sort of action it will be the courts deciding what the meaning of an emoji truly is. In a day where courts rule that a jury is entitled to actually see the emoji rather than have a description read to them, we can’t ignore the reality that action is necessary.