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EMOJI'S AND THE LAW 

USING EMOJI S WHEN THE SMILEY BECOMES SERIOUS The use of emoticons or emoji s has become entrenched in how we as a society communicate today It has also found its way into business and official communications But few appreciate the fact that such use may have legal consequences and could result in the sender entering into binding legal agreements or potentially being held liable for infringements of human rights Introduction As a more visual society we are adjusting to a new writing medium driven by developing technology such as smart phones and tablets With fast paced text speak social media and Apps that require limited characters it has never been truer that a picture is worth a thousand words So the use of these little icons speeds up communication and we can convey a range of emotions with a single key stroke Emoticons were being used as far back as 1982 to supplement online language but it really exploded with the emergence of text messaging The emoji originated from Japan in 1993 and soon became a whole new pictographic language According to research by the technology platform Emogi it has become the fastest growing language in history and emoji s are being used by 92 of the online population Text speak tend to lose context in the absence of non verbal cues like nodding smiling or frowning and sarcasm or humour may be totally missed Emoji s put those back and provide powerful nuances to online communication It can stand in for a facial expression or clarify context Our language is therefore evolving to include visual representations to show our feelings very much like the old Egyptian hieroglyphics The Egyptians too were pressed for time due to the timeconsuming carvings into rock as the saying goes as much as things change they stay the same Emoji s are used to colour the meaning of a word or phrase in the digital space and the inclusion of a single emoji can alter the meaning of the accompanying text

Interpretation and use Whilst emoji s are typically seen as playful additions to an informal message their widespread use has seen them also included in work message groups commercial transactions and business or workrelated communications Examples of commercial application are social media companies seeking to measure emoji use to quantify emotional states and produce commercially useful data advertising or customers communicating with online stores to give feedback on products and deliveries Emoji s are however often capable of multiple interpretations which could result in an ambiguous representation about goods or services or intentions Just as with any particular word or a laugh it s a matter of context and interpretation to determine what the intent is based on one symbol So how do we interpret a particular emoji when we receive it or choose one when we want to send a message One could find several different websites providing meanings Also for emoji s to function across different devices they need to exist in Unicode which includes definitions of what each character image symbol means But none of this is an official dictionary and such definitions have little to say about the use of symbols in different cultures relationships and so on New emoji s are also added at a rapid pace This means there is of necessity always a margin for ambiguity What is clear however is that the use of an emoji has an impact and bears consequences Whilst this is still fairly new in South African law there are many legal precedents internationally which are likely to be followed in our courts as well Legal consequences Some examples When the digital symbol for a gun a smile or a face with stuck out tongue comes up in court they aren t ignored In the USA a post containing an emoji of a police officer and three gun emoji s pointing at it resulted in the arrest of the sender on charges of a terrorist threat a threat against police They said they felt intimidated and harassed Also in the USA an anonymous post on a message board aimed at a co worker containing certain comments and an emoticon showing someone sticking their tongue out found its way to a defamation suit where the court found that the joking hostile and sarcastic manner of the comments the use of an emoticon showing someone sticking their tongue out P were made facetiously and with the intent to ridicule criticise and denigrate plaintiff rather than to assert knowledge of actual facts In an Israeli case the landlord of a property received a text from prospective tenants declaring their interest in the advertised apartment asking when they could discuss the details and following it up with a range of celebratory emoji s The landlord removed the online listing based on this but then they did not turn up for the meeting and fell out of touch He was awarded damages by the court for the loss of prospective rental income when he had acted in response to the misleading text message In South Africa documents from an electronic source are admissible as evidence if it complies with the legal requirements The Electronic Communications and Transactions Act Data messages are enforceable in our law and emoji s or Unicode messages could therefore also be used to prove facts relating to the communications between the parties Using emoji s such as a thumbs up smiley face a bottle of champagne or anything that creates the impression of acceptance or agreement in the mind of the receiver in official correspondence 2

when negotiating an agreement may contribute towards a conclusion that a binding contract between the parties exist If the use of an emoji constitutes misrepresentation that is wrongful fraudulent or even negligent and causes someone harm this could lead to civil action for delictual damages A similar scenario may arise if the misrepresentation induced someone to enter into a contract The use of emoji s in a manner which is intended to defraud a person constitutes cyber fraud Then of course there are the more indirect consequences even in social interaction when the use of emoji s in a certain context can point to sexual harassment ridicule unfair discrimination and the like The Promotion of Equality and Prevention of Unfair Discrimination 2000 prohibits hate speech and harassment in the context of grounds such as race gender and disability It is not required for the sender to have actually had the intention to be hurtful if an objective assessment of the circumstances determines that a reasonable person would have believed there was such an intention this would suffice In 2016 a complaint was lodged with Unicode who universally choose and encode icons that emoji s were strengthening the gender divide The argument was that all the action and careerspecific emoji s were male The female emoji s are dancing getting married or grooming themselves flipping their hair painting their nails or getting a head massage They claimed that with people growing up with a phone in their hand this was a subtle mould for fostering prejudice Conclusion While emoji s may be fun fast and mostly endearing the reality is that they amplify the message and portray the state of mind of the sender Its interpretation is rife with ambiguity from person to person and from culture to culture In a particular context even good intentions may get you more than you bargained for whether it is business related or on a social level It literally represents a thousand words and should be used with circumspection Avoid unnecessary risk and be alert especially in commercial or business related communications not to create an incorrect impression or belief in the mind of the receiver Judith Griessel Griessel Consulting Pty Ltd 21 February 2018 3