It’s safe to say that even the millennials among us never took “Interpreting Emoji” as part of course work in Evidence. So we were intrigued when we noticed a slew of articles written recently about emoji in court cases. What could the seemingly endless array of, frankly often annoying, little pictures have to do with any field of law, besides maybe copyright? Most of the articles stem from work by Santa Clara University law professor Eric Goldman. Goldman has been tracking the presence of emoji (and their forbearer, emoticons) in court proceedings, and points to a sharp increase. He also points to the difficulty courts face when interpreting the images.  Some commonly cited examples include an Israeli couple whose emoji were found to have implied a commitment to rent a property (they had to pay the landlord for lost rent), whether high heels and a money bag was an instruction from a pimp, and whether a threat is undone by sending a winky face.

While this might feel like we’re reverting to some cartoonish version of hieroglyphics, there are some important take-a-ways. One being that unlike written ancient Egyptian, emoji have no one standard meaning or form.  While there are online emoji dictionaries, the symbols are still widely subjective and can actually appear substantially different across platforms and devices.

Remember when you had to create internal policies about internet usage? Well, it’s time to do it for emoji. No firm (or person) wants to have to determine what a colleague truly meant with that eggplant emoji. Or find out that the innocent smiley face you sent from your iPhone showed up with a much different expression on your co-worker’s android device. And it goes without saying that if firms should be establishing rules of engagement with emoji, so should our clients.

In addition, we should all advise our clients to take care whenever discussing anything even close to contract negotiations, their accident, claim, or case.  While courts in this country may not have firmly established how binding a symbol in a text message is, does any of us want to be the test case?

Aside from that, two other interesting side bits pop out when delving into the topic. First, there is currently no way to search Lexis or Westlaw for actual specific emoji. As is frustratingly so often the case, the technology hasn’t caught up with the technology. So even as courts wade into establishing precedent surrounding these images, you can’t easily find out how they have ruled. Further, if you do have a case involving a specific symbol, it is cumbersome to research whether that symbol has been interpreted in other cases.

Second is the impending burgeoning profession of emoji expert. Just as you might use a doctor to explain your client’s injuries to the court, you might soon be in need of an expert witness to unwrap the true meaning of a string of pictures. Or you might want to suggest it as a field to any young entrepreneurs in your circle (insert smiling winky face here).

UPDATE: After this article was written, the Supreme Court of Virginia acknowledged Goldman’s work and the potential implications emoji hold for court proceedings in a case involving solicitation of a minor. Though the emoji were not relied on by either side or the lower courts, and therefore not addressed by the Court, they felt the topic important enough to explain this in the opinion’s first footnote.

(Commonwealth v Murgia, Record No. 180946)