Emojis and the Law: Can the Character We Send Serve as Grounds for Lawsuits?
13/05/2018
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Emojis and the Law: When You Send a Bottle of Champagne, a Smiley, a V for Victory and a Squirrel – What do You Mean?

Sloane Coake, 26, faced criminal trial in the District Court of Dunedin, New Zealand in January 2017. His alleged offense: sending the following message to his ex-girlfriend:

 

Judge Kevin Phillips was not convinced by the defense’s argument that no special significance should be attributed to the emoji symbol appearing alongside the text message. Considering that young Mr. Coake’s girlfriend had left the city of Porirua, where the two had lived together, following their break-up, and flown to Dunedin to begin her new life, the judge saw the juxtaposition of the airplane symbol to the message as a threat that Coake was “coming to get” his ex. Coake was convicted of stalking and sentenced to eight months in prison.

This example demonstrates the serious weight that the legal world attributes to these colorful characters that we send each other, usually off-hand and without investing too much thought in them.

When we examine the development of the emoji in global culture, however, this should come as no surprise.

The emoji was created by Japanese cellular companies with the goal of creating a global language, and spread alongside the various digital media. Currently, hundreds of software and hardware companies have enlisted in the constant effort to expand and update the emoji database. According to an article in Forbes magazine, in 2016, more than six billion emojis was sent in a day in US alone. “Emoji” was declared the word of the year by Oxford Dictionary in 2015. The emoji serves as the focus of research in many different disciplines of social sciences, such as psychology, sociology, media and culture. These amusing cartoons are no laughing matter.

As we know, law is intended to establish certain codes of conduct – in the form of laws and case-law – intended to formally regulate the general rules of civil behavior among persons subject to the legal system. So it’s little wonder that the ever-increasing use of emojis has brought them to the threshold of the court.

Courts around the world have found themselves contending with the question of the legal significance of the emoji – and not just in the context of threats and harassment. For instance, in 2017, a supreme court justice in Queensland was faced with the question of interpreting the final will of a deceased person regarding what should be done with his sizeable estate. A central subject of the trial involved the question of whether a text message saved on the deceased’s cellphone – and never sent – was executed at a time when he was legally competent to create a will. The message stated that the deceased bequeathed his home and all attachments thereto to his brother and his nephew, and not to his wife. The message ended with the words “My Will,” followed by a smiley face. The court determined that the unofficial nature of the will did not negate the possibility of it being seen as a legal expression of the deceased’s final wishes.[1]

In 2017, emojis and emoticons (portraits created by punctuation sequences, such as the innocent smiley face – (-: ) were mentioned in 33 opinions submitted to federal and state courts in the US, according to a study conducted by Prof. Eric Goldman, of the Law Faculty at Santa Clara University. This occurred in a variety of circumstances ranging from sexual harassment, to defamation claims, to various levels of threats.

Recently, emojis have also surfaced in the Israeli courtroom. In one case, a reservist filed a claim with the Employment Board (Tel Aviv District) of the Ministry of Defense, alleging that he’d been unlawfully fired shortly after returning from reserve duty. Among other things, he claimed that his employer had forced him to work while serving. However, upon examining the Whatsapp messages exchanged between the plaintiff and his supervisor, which were replete with emojis, the Employment Board determined that the conversation had been pleasant and humorous, and that no pressure had been exerted on the plaintiff. [2]

Another case that won acclaim in the press was adjudicated in the Small Claims Court of Herzliya, in the courtroom of Judge Amir Weizenbluth. The plaintiff published an ad to lease his apartment on the website “Yad2.” The defendants, a couple, visited the apartment and later send the plaintiff the following message:

[The Hebrew text in the message reads: “Good morning. We want the house… we just need to meet about the details… what time is good for you?”]

After receiving this message, the plaintiff removed the ad from the Yad2 message board. Ultimately, the negotiations did not materialize, and no contract was signed between the parties.

The court determined that the exchange between the parties did not amount to a binding contract, but nonetheless charged the defendant to pay compensation to the plaintiff for breaching their duty of good faith. In reaching this verdict, the court gave significant weight to the emojis that were sent, and the great significance that the plaintiff attached to the positive and committed attitude they exhibited.[3]

A saying attributed to the Chafetz Chaim goes: “People are very mindful of what they put in their mouths; less mindful of what comes out of their mouths.” In our times, it is worth paying attention to what comes out of our fingertips. Sometimes a smiley can be much more than a smiley.

[1] This example, as well as the example brought from New Zealand, were mentioned in an article published on the website of the Australian ABC network on December 5, 2017 under the headline: “Emoji and the Law: What Happens when They're Used to Threaten or Suggest Violence?” See: http://www.abc.net.au/news/2017-12-05/emoji-and-the-law-threatening-suggesting-violence-cases/9227136.

[2] Employment Board (Tel Aviv) 33/16 Anonymous v Merrily Employment Solutions Ltd. [published on Nevo] (December 7, 2017).

[3]Small Claims (Herzliya) 30823-08-16 Yaniv Dahan v Nir Chaim Sacharoff [published on Nevo] (February 24, 2017).

 

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