A "tsunami" of legal proceedings could be on the way as emojis become increasingly integrated into online and text-driven communications, says US Santa Clara University Law Professor Eric Goldman.
Professor Goldman - who says he loves emojis - notes that due to the enthusiastic embrace of emojis, we are witnessing a historic change in how we communicate online.
In his research paper Surveying the Law of Emojis, he says there are three significant ways in which the emojis revolution will impact the law:
First, questions about what emojis mean will arise in a wide range of legal doctrines, from criminal law to contracts. "Our standard interpretative tools generally can handle new communicative technologies, but several aspects of emojis will require careful consideration."
Second, emojis will often qualify for copyright and trademark protection. "However, IP protection encourages platforms to differentiate their emoji implementations, which exacerbates the risks of miscommunications and misunderstandings. To mitigate this outcome, IP protections for emojis should be interpreted narrowly."
Third, Professor Goldman says, emojis create some issues for judicial operations, including if and how judges will display emojis in their opinions, if emojis in court opinions will be searchable, and how best to present emojis as evidence to factfinders.
Excuse me, what is an "emoji"?
If you've ever been on Facebook or texted or done any of the everyday things in 2017 New Zealand, you've almost certainly seen an emoji. The fascinating 2016 Emoji Report says 92% of the online population use emojis, and 2.3 trillion mobile messages that incorporate emoji will be sent this year. You can find whole websites devoted to them - they are picture characters, and that is where the word comes from - it is Japanese for ... "picture characters".
Emoticons have been around a lot longer than emojis and are a do-it-yourself way of expressing emotions. Research has pinned the first ever emoticon down to 19 September 1982. You don't need a graphic designer to create an emoticon. The word combines "emotion" and "icon" and the concept developed as a way of adding nuance to the printed word :-) (hey, I'm not serious when I say this...).
There are an ever-growing number of emojis, making it ever-easier to communicate purely through stringing them together. We have New Zealand Sign Language, and now we have the Kiwi Emoji Dictionary (brought to you by the cunning marketers at Spark). Mai FM has released a special set of Māori emoji. Emoji use is an increasingly important marketing tool. These things are everywhere.
Emojis influence Israeli court decision
If you think Professor Goldman is just another academic having fun, pause. Not long after release of his paper an Israeli court was required to consider the impact the use of emojis had had on formation of a contract.
As noted on the authorative Mashable website, the court ruled that the emojis were evidence of intent. The case involved a landlord and two (potential) renters, who did it all by text. After a few exchanges, the landlord decided that he had a deal and removed his advertisement for the space. The potential renters then stopped communicating. The landlord took them to court, saying he had relied on their messages and believed that the deal was going to be done.
Deciding in favour of the landlord, the Israeli judge was influenced by the following text:
“Good morning interested in the house just need to discuss the details … When's a good time for you?”
The judge decided that there was not a binding agreement, but awarded the landlord US$2,200. Translated by someone from Hebrew, his judgment includes the following:
"...the sent symbols support the conclusion that the defendants acted in bad faith. Indeed, this negotiation’s parties’ ways of expression may take on different forms, and today, in modern times, the use of the 'emoji' icons may also have a meaning that indicates the good faith of the side to the negotiations. The [emoji laden] text message sent by Defendant 2 on June 5, 2016, was accompanied by quite a few symbols, as mentioned. These included a 'smiley', a bottle of champagne, dancing figures and more. These icons convey great optimism. Although this message did not constitute a binding contract between the parties, this message naturally led to the Plaintiff’s great reliance on the defendants’ desire to rent his apartment.
"As a result, the Plaintiff removed his online ad about renting his apartment. Even towards the end of the negotiations, in the same text messages sent at the end of July, Defendant 2 used 'smiley' symbols. These symbols, which convey to the other side that everything is in order, were misleading, since at that time the defendants already had great doubts as to their desire to rent the apartment."
Back to Professor Goldman
Whether the Israeli court approach would happen in New Zealand is, of course, totally unknown - as is how often they are discussed or contemplated in court here or anywhere. Professor Goldman has searched LexisNexis and Westlaw and found 80 opinions dated 31 December 2016 or earlier containing the term "emoticon" or "emoji". He has helpfully posted it online, and notes that the count of 80 probably understates the actual number "by a lot".
One big problem is, of course, searching for emoticons or emojis. The characters used to create them conflict with Boolean search operators used by database providers such as LexisNexis and Westlaw. "For example, if a searcher wanted to do an image search to find court opinions discussing the 'grinning face' emoji, there would be no way to do so," Professor Goldman says.
"As more court opinions discuss and analyse emojis, litigants may want to search for precedent cases interpreting specific emojis. As an example, imagine a litigant wanted to find all of the opinions addressing when incorporating a weapon emoji (eg, a gun, knife, or bomb) in a social media post constituted a criminal threat. Our current caselaw databases cannot handle that task adequately."
Professor Goldman believes that emojis should be admissible evidence as long as they can satisfy the ordinary rules of evidence, such as relevance. However, there is the problem of how they should be presented to juries or other factfinders.
Emoji in English decision
When an English judge used an emoji in a decision last year, it made headlines. After stumbling across the decision in September 2016, England's Daily Telegraph said Justice Peter Jackson's decision in Lancashire County Council v A  EWFC 9 (4 February 2016) "is thought to be the first in English legal history to incorporate an emoji, or web symbol, to explain a point of evidence". The custody decision is "as short as possible so that the mother and the older children can follow it", Jackson J says, before using the emoji in paragraph 27:
"The mother left a message in the caravan for the father's sister, who I will call the aunt. It told her how to look after the family's pets. The message said that the family would be back on 3 August. It has a ☺ beside the date. After the family left, the police searched the caravan. They found the message and say that the ☺ is winking, meaning that the mother knew they wouldn't be coming back. I don't agree that the ☺ is winking. It is just a ☺. The police are wrong about that, and anyhow they didn't find anything else when they searched the caravan."
It is not known if emojis have yet appeared in New Zealand decisions, but it is unlikely. While the problems of searching identified by Professor Goldman remain, New Zealand law librarians who were approached are unaware of any judgments with emoji. A search of LexisNexis' New Zealand commentary also draws a blank.