Emojis feel like they’ve been around forever because they substitute for some of the nuance lost in written text when tone and physical communication are missing. Evolving from the prehistoric smiley emoticon : – ) and ‘whatever’ kaomoji ¯\_(ツ)_/¯ they’re fast becoming a standalone language.
Unfortunately emojis have some serious flaws. They’re a combination of imperfect emotional representations and slang that vary by region, group and individual. This makes them impossible to objectively interpret. These challenges are exacerbated by cross-platform inconsistencies in emoji presentation. So what does this mean for emojis in contract and law?
How this matters in law
Though ambiguous, emojis do convey meaning and lawyers need to consider when they will be legally binding or convey intent.
Imagine these scenarios:
- A landlord receives a message from a potential tenant with positive emojis (like a popping champagne bottle).
- A teenager posts a picture of a person or their school with gun, knife or bomb emoji.
An Israeli court determined that an emoji can illustrate legal intent. It ordered damages to a landlord who claimed reliance when he received a text with positive emojis and took down the ad for the property.
In the US, a teenager was arrested for terror threats after posting a status showing emojis of guns pointing at a police officer (amongst other things) and a 12 year old was charged with computer harassment and threatening school staff after posting two messages that included gun, bomb and knife emojis with messages that read “Killing” and “meet me in the library Tuesday”.
There’s also been an uptick in interest in pictorial contracts recently, particularly where contracts are being made in communities with high illiteracy rates or regional dialects that aren’t widely understood. Often these contracts take a comic strip form, but it’s not unthinkable that they could be written in the language of emojis.
Unusually this is one situation where the untested legal language of emojis could prove a more accurate means of communication than drafting in either party’s native tongue.
So we need to know what happens when emojis become legally binding and how the courts will interpret them.
How will courts interpret emojis?
Courts in a number of jurisdictions have already considered the use of emojis in messages:
- In Re Nichol  QSC 220 an unsent text message deemed to be a last will and testament included consideration of a smiley emoticon. The Court found this informality didn’t prevent it constituting a will.
- The absence of an emoji was raised in a claim before the Fair Work Commission for unfair dismissal by a baggage handler who included the statement “We all support ISIS” in a Facebook post and claimed it was sarcastic (Singh v Aerocare Flight Support Pty Ltd  FWC 6186[OE(1] ).
- Across the ditch in New Zealand a judge stated that the words “You’re going to f***ing get it”, followed by an aeroplane emoji from an ex-partner were threatening and indicated he was “coming to get her”. This is arguably a pretty clear threat though, even without the emoji.
- In the US high profile trial of Ross Ulbricht, founder of Silk Road, the court considered whether a jury should be shown messages including emoticons to prevent them being presented misleadingly. The less than perfect result was that lawyers read the texts to the jury and said the word “emoticon”, to indicate an emoticon had appeared, without further description.
- US courts have also ruled on the use of a smiley face to indicate sarcasm, happiness or a wink (see Surveying the Law of Emojis) but this is a basic and widely used emoticon. Newer, less common or more intricate emoticons might present greater challenges.
Emojis can have a multitude of meanings depending on their context. A winky face could indicate flirting, teasing, joking or sarcasm. Context can be drawn from the immediate message, the sender and receiver’s personal history or wider cultural contexts (see The Emoji Factor: Humanizing the Emerging Law of Digital Speech).
Slang meanings can be obscure, particularly when multiple emojis are combined. There are few reliable emoji dictionaries (the online Emoji Dictionary, for example, describes itself as tongue in cheek and is sponsored by the Word Translation Foundation or “WTF”). Emojipedia appears to be the most reliable. This site is a commercial endeavour established and administered by an Aussie, Jeremy Burge, who is a world-leading emoji authority. Searching for emojis using text descriptions, with about 2,000 Unicode emojis to wade through, also presents significant issues.
The courts have dealt with non-verbal, non-written communication before but there are a few emoji-specific challenges that the courts haven’t had to consider yet. These arise from the way emojis were developed and how they’re conveyed between users and platforms.
Emoji discrepancies between platforms
Bear with me here. Most emojis are conveyed using a universal code called Unicode. This is interpreted by different platforms differently, a bit like having different fonts for text.
Unicode defines each emoji with a ‘suggested’ outline image and a brief description (for example ‘grinning face with smiling eyes’). The emoji is conveyed using a code and when the other platform receives that code, it presents its own interpretation of the emoji. This might be quite different from the interpretation of the sender’s platform. The sender and recipient might never know they’re seeing different images.
These differences are usually slight but can be compounded because branding and intellectual property rights incentivise platforms to present emojis differently. Platforms also manage their emojis according to their user’s needs or to discourage unsavoury use. For instance, Instagram blocked searches of the phallic aubergine emoticon and Apple changed its gun emoji to a green water pistol.
Non-unicode emojis, like the stickers on Snapchat or Facebook, have even greater cross-platform problems. Generally if sent outside their platform they will display only as a placeholder icon (like a blank square) or disappear without a trace.
- Different platforms’ interpretation of the Unicode emoji ‘grinning face with smiling eyes’. On Google Nexus, this is a toothy smiling face. On Apple, this looks like a grimace with teeth bared that some people interpreted as “ready to fight”.
A huge interpretation disparity existed in relation to Microsoft’s Windows 10 version of grinning squinting face which 44 per cent of people surveyed interpreted as negative while 54 per cent interpreted as positive (“Blissfully happy” or “ready to fight”: Varying Interpretations of Emoji).
- Unsupported emojis. A ‘laughing clown face’ for a Samsung user can become a question mark in a box, if sent to an Apple user. If the recipient assumes the placeholder icon is the intended emoji, they think the sender has sent ‘?’ when they should’ve seen a laughing clown.
It’s unlikely judicial officers will take these factors into account. Currently, the courts’ understanding of emoji use is limited at best (see, for example, Warren v Peat  FCCA 664 and R v Mella  NSWDC 193).
Growth of the emoji language
Emoji use is increasing, encouraged by companies like Apple which ‘auto-suggests’ emojis for certain words.
- Literary works have even been rewritten entirely in emoji (see Emoji Are Entertainment in the 2016 Emoji Report). Soon enough emojis may be on our physical keyboards.
- Snapchat allows users to ‘pin’ emoji stickers to moving objects in video.
- Facebook filed a number of patents to use facial recognition technology to tailor emojis to a user’s facial expressions or keyboard strokes (see Emoji Progress within Mobile Messaging in the 2016 Emoji Report).
Emoji as a language is becoming richer and more complex. New emojis are added to the family every year and over time their use is resulting in more widely understood connotations. Certain emojis, such as the aubergine and peach, have well-known connotations beyond representing flora.
Contracting in emoji
Questions for lawyers are:
- What’s the risk when the emoji sent is different to the one received? Contracts formed using mismatched emojis could result in a fundamental common mistake and be rendered void. Even if only certain aspects of the contract are affected parties might need to litigate to seek rectification.
- What happens when an emoji disappears from a message (changing its meaning) because the recipient’s platform doesn’t recognise it? Courts could decide that where some sort of indicator is sent that an emoji hasn’t been recognised the recipient is on notice that there could be more to a message. However, this will depend on the facts. The average smartphone user might not be aware that placeholders indicate that the sender has included an unsupported emoji in their message. Where the emoji drops away completely, a sarcastic comment saying “sign me up” with a winky face might saddle someone with a legal obligation they didn’t intend. This could result in a good old fashioned intent to contract argument.
However it pans out, context is likely to be key.
For now, lawyers should be advising their clients to avoid emoticons and emojis in business dealings. The chance of misinterpretation is high and compounded by the differences on different platforms and versions. But more than that, no one wants their client to be the test case for emoji interpretation in Australia.
For more information on contract formation, check out the Practical Law Australia Commercial resources below: