Emojis and emoticons are popping up in divorce cases, and people are landing in hot water. My new article on emojis and legal ambiguity, which was just published in the Florida Bar Family Law Section Commentator, can help anyone faced with interpreting emojis avoid feeling 🤦.
Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications.
Today, roughly 70 percent of the public uses some type of social media. Social media has changed many of the ways in which we communicate. For one thing, social media has increased our use of emojis.
One report found more than 92 percent of people use emojis on social media. Emojis have spread to the business world, where nearly half of workers add emojis to professional communications, and companies use them to increase sales and brand awareness.
Emojis in Court 👩⚖️
They can’t simply be overlooked by courts, because emojis and emoticons say a lot about the sender’s intent. Ignoring them would be like calling a witness to the stand and ignoring their facial expressions.
Emojis fail the ‘duck test’: if it looks like a duck, and quacks like a duck, then it is probably a duck. That’s because emoji meanings can be so puzzling, a “duck” emoji, may mean anything but a duck.
For example, a U.S. federal court recently held that a “Smiley” emoticon =) converted an email into a joke, the email meant the opposite of what it said, and a criminal defendant’s lawyer did not violate the Sixth Amendment by sending the prosecutor an email joking: “stipulate that my client is guilty. :)”
An Israeli court awarded damages based on emojis after a prospective tenant sent a landlord a text saying: “Good morning 😊 we want the house💃🏻 👯 ✌ ☄ 🐿 🍾 just need to go over the details. . .” The landlord removed his ad, then the tenant disappeared. The court awarded the landlord 8,000 shekels.
Ambiguity: What does 😏 Mean?
I’ve written about marital settlement agreements and prenuptial agreements before. There are unique issues with emojis, rendering them hard to interpret. For one thing, there’s no definitive source as to what emojis mean.
That unknown can make agreements in an email, a text or an actual marital contract, ambiguous. Marital agreements are interpreted like any other contract. Basic interpretation begins with the plain language of the contract, because the contract language is the best evidence of intent.
Courts are not supposed to rewrite terms if they are clear and unambiguous. Anyone seeking to show a court any evidence outside a fully integrated contract, must first establish that a contract is ambiguous.
A contract is ambiguous when its language is reasonably susceptible to more than one interpretation. That’s where emojis come in, they can be very ambiguous. But why?
Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.
Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. For example:
The “Folded Hands” emoji symbolize “please” and “thank you” in Asia. However, in the U.S. it means: “I’m praying,” and frequently, “high-five”!
The “Pile of Poo” emoji is a pun on the Japanese word for excrement (unko), which starts with the same “oon” sound as the word for “luck” and is complimentary in Japan. But, in the U.S. the emoji is used to express contempt. Strangely, Canadians use the emoji the most.
You can’t understand an emoji’s meaning just by looking at one. People use emojis in ways that have nothing to do with the physical objects they represent, or even what typographers intended. There are regional, cultural and slang meanings to consider too. After all, emojis’ inherent ambiguity is one reason why they’re increasingly becoming evidence in court.
The Spring 2018 Family Law Commentator is here.