If you're communicating with someone via text or online message, there's a good chance you'll use an emoji. There's a tiny, colorful icon for practically everything, and new ones added every few months.
Like with most new things that are introduced to us online or on our smartphones, we try to adapt as quickly as possible and use it ourselves. Although emojis have become a staple in conversations for almost everyone, the picture-language has raised questions in courtrooms.
Eric Goldman, a Santa Clara University law professor, told The Recorder that emojis show up most frequently where online chatter is a key source of evidence. The most common cases that involve emojis are sexual predation where the perpetrator and the victim exchange flirty or sexual banter.
In 2017, Goldman found that 80 court opinions referenced emojis, and it's shown no sign of going away.
"We're seeing a J-curve of exponential growth of references to emojis in court opinions," Goldman told The Recorder. "30 percent of the all-time number of opinion references to emojis occurred just in 2018."
But courts debate about whether to show emojis in court opinions or not. Most often, they're omitted because of the inability to exactly pin down which emoji is being used and what it could be in reference to. Goldman cited the "smiley" emoji, for example, because there are about a dozen smiling emojis.
"So while the number of court opinions referencing emojis is growing rapidly, the court publication process remains woefully under-prepared," Goldman said.
Goldman also said that realizing emojis can render differently across platforms and devices is important to take into account. He cited a study that showed at least 25 percent of respondents didn't know the emoji looked different to the recipient. After they were shown how the emoji looked, 20 percent said they might've edited the message or not sent it.
"These statistics reflect millions of potentially regretful tweets shared per day because people cannot see emoji rendering differences across platforms," Goldman told the Recorder. "Those 'regretful tweets' should make lawyers some good money."
While Goldman notes that courts have been interpreting nonverbal or nontextual communications for ages, emojis are different for three reasons.
First, emojis are small and look similar to one another. This makes it easier for a reader to identify it incorrectly. Secondly, in addition to looking different on platforms, regional and community-specific dialect must be taken into consideration.
Lastly, Goldman reiterated that emojis display differently on different platforms which could lead users to different interpretations.
"For example, on Apple, eggplants are associated with penises and peaches with butts because of how Apple depicted those emojis," Goldman said. "For a long time, emoji users on other platforms had no idea of those connotations, because the eggplant and peach emojis on their platforms didn't suggest those associations."
Goldman's had three pieces of advice for judges who might find emojis in their courtrooms.
"First, judges should make sure that the lawyers present the exact depictions that their clients saw," Goldman told the Recorder. If an emoji rendered differently, seeing how both parties received the image can help clear up a dispute.
Next, Goldman suggested that judges ensure the accuracy of the emoji's definition. If an emoji is part of a testimony, it shouldn't be "orally characterized" but visually displayed.
Lastly, Goldman said judges should display, not omit or try to characterize textually, emojis in their court opinions.
"As unsettled as emoji law is today, it's only going to get more complicated as technology evolves," Goldman said.
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- Eric Goldman, a Santa Clara University law professor said that emojis are becoming more frequent in court cases. Judges are having a harder time deciding how to handle their presence.
- Emojis are often misinterpreted, rendered differently from device to device and shouldn't be textually characterized, but displayed as a picture, according to Goldman.
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