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Last updateFri, 18 Oct 2019 10am

The legal vacuum of emojis

Members of my generation are sometimes confounded by the changes in our language that have been brought about by modern technology, specifically texting on smart phones. 

Anyone born in this century has no problem understanding shorthand such as SFLR, TGIF, RUOK, and @TEOTD.  If that was not bad enough, there is another new innovation threatening to turn our languages, English and Spanish, into ones that favor hieroglyphs over using words spelled out using the Roman alphabet.

Emoji is a Japanese word describing ideograms and smiley faces used in electronic messages.  They exist in various genres, including facial expressions, common objects, places and types of weather, and animals.  Unlike emoticons, emojis are actual pictures instead of typographics.

In 2015, Oxford Dictionaries named the emoji depicting a face with tears of joy as their “Word of the Year.”  Excuse me?  That “Word of the Year” is not a word with a legal or even widely accepted definition, and that can be a big problem.  Moreover, what different individuals interpret emojis to mean has already become an issue for law enforcement and the courts to contend with.

In 2017, a couple was sued in an Israeli court and charged thousands of dollars for using the wrong emojis. They had sent an enthusiastic text confirming their interest in an apartment, including in the text a string of emojis: a champagne bottle, a squirrel, and a comet. Then they decided to rent a different apartment.  The jilted landlord sued and the court ruled that the couple acted in bad faith because the emojis “conveyed great optimism” that “naturally led to the Plaintiff’s great reliance on the Defendants’ desire to rent his apartment.”

In California prosecutors tried to prove that a man arrested during a prostitution sting was guilty of pimping charges.  Their evidence was a series of nebulous text messages that included emojis depicting a ladies high heel shoe and bag of money. Prosecutors said the emojis implied a working relationship while the defendant said he was only being flirtatious, perhaps implying how much money some women spend on their shoes.

In electronic communications it is true that using pictographs can be a valuable to supplement to the inherent shortcomings of the written word. Voice inflection and body language are immediately lost in print, so adding emojis does offer a method of adding back context and memes.  How this is interpreted is another matter.

Emojis are now showing up exponentially in law enforcement actions and courts are not prepared.  Users of technology, especially older generations, are sometimes decorating their communications with emojis without a good understanding of the meaning those images could have.  Indeed emojis are not listed in any legal dictionary. There is no definition, except that we now know that including a champagne bottle, squirrel and comet legally cements a contract.

Charles Miller is a freelance computer consultant with more than 20 years IT experience and a Texan with a lifetime love for Mexico. The opinions expressed are his own. He may be contacted through his web site at SMAguru.com.

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