The Trouble With Emojis
V&E High-Tech Law & Litigation Update, March 08, 2019
By Jason Levine
Like the Tribbles on the classic television series Star Trek, emojis are cute and fun, but they can cause major trouble if not handled correctly. As emojis increasingly make their way into business communications, their use is beginning to create unanticipated and problematic legal exposure for companies. Dozens of published court decisions since 2004 have grappled with emojis as evidence, and the number of these cases has spiked as of 2017. These cases run the gamut from contract disputes, to sexual harassment and discrimination, to murder (involving the use of a face emoji with x’s for eyes, symbolizing death). The emoji trend shows no signs of slowing, and their legal complications for companies are likely to worsen unless common-sense safeguards are widely adopted.
Emojis, of course, are small picture characters commonly used in emails and text messages. The Oxford English Dictionary defines an emoji as “a small digital image or icon used to express an idea, emotion, etc., in electronic communications.” They are a way to integrate visual images into text, and they can expand depth and emotional content in ways that written words cannot. As explained by Professor Eric Goldman in the seminal law review article Emojis and the Law, as of January 1, 2018, there were 2,600 emojis with codes under the Unicode Consortium, plus countless more that are specific to different messaging platforms. Related symbols are “emoticons,” which are letters, numbers, and other standard keyboard characters that are strung together to resemble a picture (for example, the “smiley” emoticon – :-)). According to recent surveys, a whopping 92% of online participants use emojis, and 2.3 trillion mobile messages include emojis annually. They are ubiquitous and now common in business communications.
The major problem with emojis involves their interpretation and meaning. If, as the saying goes, a picture is “worth a thousand words,” then so is each emoji. This reflects two major attributes of emojis, and can lead to unintentional and profound misunderstandings.
First, as a technological matter, different platforms translate and depict emojis differently. This means that an emoji transmitted via an iPhone or an Outlook email may look quite different on an Android device, and vice versa. The same problem occurs with new versions of the same platform. Emojis look different on Apple iOS 6.0 than on iOS 10.0, for example. Making matters worse, the sender and receiver have no way of knowing that they are looking at symbols rendered differently across platforms, and they also do not necessarily even know that the emoji is being read on a different platform. All of this can lead to major misunderstandings. A classic example is the Unicode-coded emoji known as “grinning face with smiling eyes.” A 2016 survey revealed that most people thought the Android version meant “blissfully happy,” but thought the iPhone version meant “ready to fight.” Thus, the sender may mean to convey one meaning, but the recipient could read the emoji to mean the exact opposite. The burgeoning field of emoji research, as evidenced by Professor Goldman’s article, reveals many similar examples.
Second, emojis often have multiple meanings that not all senders and recipients will mutually recognize. Indeed, Unicode Technical Standard #51 actually states a preference for adopting emojis with multiple meanings. Although this allows senders to convey many different concepts at once, it also raises the prospect of serious misunderstandings. The absence of any comprehensive and accepted emoji dictionary exacerbates this problem. Emoji scholars have chronicled many popular emojis with multiple meanings. The “folded hands” emoji, for example, can symbolize please, thank you, prayer, and a high-five – all very different meanings, with different implications, for a single emoji. A 2016 survey showed that the iPhone “unamused face” emoji is variously interpreted as signaling disappointment, depression, being unimpressed, and being suspicious. There may also be differences in emoji interpretation among different user groups, industries, and generations of users, all of whom may have their own idiosyncratic understanding of given emojis. Our teenage children may interpret particular emojis differently than we would, and even more differently than our parents would.
Given the ubiquity of emojis, their use and interpretation has made its way into the courts. A primary function of the law, after all, is to resolve disputes, often revolving around language, and emojis are an increasingly important part of everyday vernacular – including in business communications. For example, a 2017 court ruling from Israel involved the interpretation of text messages between a landlord and a prospective tenant concerning the rental of an apartment. Based on a message that included a series of emojis – including a smiling face, dancing women, a champagne bottle, a peace sign, and a chipmunk – the landlord believed the tenant would rent the apartment and took it off the market. The tenant did not ultimately sign a lease, however, and the landlord sued for damages. The court ruled in favor of the landlord, concluding that the various emojis combined to convey “great optimism” and an absence of doubt about the transaction, leading the landlord reasonably to rely on them. Although the court did not find a contract, it found that the tenant had violated a duty to bargain in good faith, and thus was liable. Dahan v. Shacaroff, Small Claims Court (Herzliya) (Feb. 24, 2017). The outcome might well have been different in U.S. courts, but this case demonstrates that the use of emojis can have contractual and business consequences. Indeed, since 2008, U.S. courts in published decisions have addressed smiley face emojis in business cases involving breach of contract (five cases), employment discrimination (three cases), and sexual harassment (three cases). In the same time period, many other contract and employment-related cases have revolved around other emojis as well.
Viewed through a contract-law lens, one framework for adjudicating misunderstandings arising from the use of emojis might be governed by the Restatement 2d of Contracts § 20, which provides that there can be no contract if the parties attach “materially different meanings” to their attempted “manifestation of mutual assent” and neither party knows or has reason to know the meaning attached by the other. If, however, one party has an information advantage and does know the other party’s meaning, then the knowing party will be contractually bound to the unknowing party’s understanding. This framework, however, requires evidence of each party’s actual knowledge, which may be difficult to adduce accurately given the likely absence of any objective artifacts of that knowledge, resulting in substantial and possibly indeterminate discovery.
In view of these problems, companies should consider implementing emoji-use policies. Because it is impossible to impose universally-accepted meanings on emojis among customer, colleagues, and other email or text counterparts, it may be most prudent to prohibit the use of emojis in employees’ business communications. Possible limited exceptions could be made for social communications with customers and colleagues. But the high risk of misunderstandings in a business context, which can give rise to disputes over contract formation, and potentially harassment or discrimination claims, seems to militate in favor of a bright-line rule against the use of emojis altogether. This may limit the spontaneity of business communication and make it more formal, but these downsides must be weighed against the real possibility of inadvertently forming (or breaching) contracts or other real consequences of emoji use. In sum, unless and until the technology and societal understanding of emojis evolves further, to the point that there is a greater degree of standardization, the indeterminate meanings that can make emojis fun can also make them perilous in a business context. For now at least, companies must consider whether emojis – like Tribbles – are more trouble than they are worth.
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