Welcome to the 21st century, where emojis might soon become evidence in courtrooms.
A new paper from Eric Goldman at the Santa Clara University School of Law suggests emojis aren’t just a way to add emotional context to our text messages, emails and other written forms of digital communication. Instead, they could be interpreted—correctly or otherwise—as proof of threatening language when presented in courtrooms.
In his 57-page paper, Goldman explores three topics: the questions about what an emoji might mean “will arise in a wide range of legal doctrines, from criminal law to contracts,” left to the interpretation of the receiver and, if a situation escalates, to person viewing the message and applying the law. For example, someone using a newer iPhone could send an emoji of a broadly smiling, happy face, while the receiver sees a face with gritted teeth – it’s the same message but the meaning might change dramatically between sender and receiver.
Secondly, there’s the question of copyright and trademark protections, further complicated by intellectual property protection, which “encourages platforms to differentiate their emoji implementations, which exacerbates the risk of miscommunications and misunderstandings,” Goldman says. As a result, there could be efforts to narrowly interpret IP projections for emojis.
Finally, “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 fact-finders,” he says.
Before suggesting this is a crazy idea and a little unrealistic, consider two cases: That of Anthony Elonis, the self-proclaimed rapper whose “lyrics” posted on Facebook were interpreted as threats against his ex-wife and their children in a case that went to the US Supreme Court. The use of emojis here, even if they were coded in the same way and appeared identically to the sender and the reader, could have been used as evidence of the intent of his words.
Then there’s the death of Gakirah Barnes, a self-identified gang member who was killed in Chicago recently and whose social media profile is filled with emojis underscoring aggressive and threatening language, according to an article on The Trace written by Desmond Patton.
Chicago has a reputation, especially in US political conversation, of being a city ravaged by violence and gun-related deaths, witnessing a 58% increase in homicides between 2014 and 2016, and some within the city’s law enforcement world are suggesting social media posts are exacerbating the problem. “Their diagnosis may sound like some attempt to duck responsibility for the failure of the local law enforcement system to interdict more illegal firearms or do more to stop repeat shooters before they injure or kill again,” Patton writes. But there might also be some truth to it: “I can tell you that the frequency with which young people use platforms like Facebook, Twitter and Instagram to hurl insults, taunt enemies and brag about violent acts is playing a meaningful role in fueling retaliatory efforts between gangs and cliques in marginalized neighborhoods.”