What used to be mundane forms of expression on online messaging platforms has now emerged as tools used for investigations and court cases.
Judges have struggled with the nuances of using emojis as evidence in cases as numbers continue to rise through the years.
In the United States alone, the number of cases that used emojis as evidence had risen from 33 in 2017 to 53 in 2018. This year, there are about 50 for just the first six months as per Santa Clara University law professor Eric Goldman, as he monitors court opinions released to the public.
Various interpretations
At present, there are no clear guidelines in the court on how to treat the emojis when presented to the jury. Goldman states that some judges attempted to describe the emoji to the jurors instead of presenting it for the jurors to see and interpret, as per a report from CNN Business.
Cases where emojis are mostly being used include criminal cases, workplace lawsuits, and sexual harassment.
Eckert Seamans Cherin & Mellott resident attorney Karen S. Elliott, whose firm has been working on cases with emojis, said that there are many cases where emojis can get lost in translation: “Someone may use threatening symbols, a gun, a pointed finger, and then behind it put a symbol for ‘just joking,’ There is a lot that could get lost in the translation. Was it a joke? Or was it serious? Or was the person just using the emoji to hedge so that they could later argue it was not serious?”
Harmless Jokes vs. Serious Threats
Time and again, defendants in various emoji cases have said that ‘I was just joking’- and while courts do recognize humorous statements to this day, Attorney Elliot states that they have since become more skeptical as the recipient may or may not have understood where the inserted emoji was just a joke. “As long as the threat is conveyed, it remains a threat. For example, you can’t yell ‘fire’ in a crowded theatre and then say ‘just joking’,” she said.
However, Goldman asserts that the public is still in the ‘adjustment period’ and is optimistic that courts will soon adapt to the technology. “With the proliferation of any new technology, there is an adjustment period for everyone, including judges. As judges become more familiar and comfortable with emojis, they will figure out the best ways to adapt existing legal principles to [them],” said Goldman.
