Emails and texts have become regular exhibits in divorce trials. And increasingly, people are using emojis to express their intent. But did the witness’s champagne bottle and lipstick emoji mean what we thought? This is a post about emoji law.
“Emoji” is Japanese for pictograph: e “picture” + moji “character”. Emojis are a writing system that uses symbols to represent an idea rather than words.
According to some studies, more than 90% of social media users communicate with emojis with some six billion emojis exchanged daily.
In a way, we’ve regressed to a hieroglyphics language not unlike the ancient Egyptians.
The Wall Street Journal has a great article on the increasing trend of people communicating through pictures and how we lawyers have to decipher the parties’ meaning.
I’ve written about social media evidence in divorce before. The increasing use of emojis has put a new spin on things.
One of the first questions lawyers ask is about authenticity. Is the text, FaceBook or Instagram post even authentic? Usually, authentication of evidence like texts, emails, photographs, videos, audio recordings, and computer records is required as a condition to being admitted into evidence.
Some exhibits are so trustworthy, our Evidence Code doesn’t even require a witness. This is useful for things like: the law, and court rules for instance. For most other evidence, the Evidence Code lets the judge decide.
Over the years, the threat of false evidence being introduced in court has been diminished through the discovery process. We send out requests for admission and have pretrial conferences which have helped make authentication less of a concern.
Only after the evidence is found to be authentic can we discuss the intent of the text or post. Family law is unique. We have hearings early in the case, which means your emoji, and what you intended, can be discussed right away.
Emojis and the Law
Emojis are new, so there are no laws on the treatment of these emotion laden symbols. We only have a few cases to determine what courts do with emojis – and they do not consistently agree.
In some cases, emojis are taken under consideration when interpreting a commenter’s original intent.
For example, the appeals court in Michigan determined that “The use of the ‘:P’ emoticon makes it patently clear that the commenter was making a joke” because the face this emoticon represents usually “denotes a joke or sarcasm.”
The U.S. Supreme Court reversed a conviction of making threatening communications. The primary issue was whether a husband intended a “true threat” to his wife. The husband argued that his text was in jest because he added a “smiley” emoji sticking its tongue out.
The Supreme Court did not discuss the emoji, but reversed the conviction on other grounds.
The Wall Street Journal article is here (paywall).