Perhaps Judges & Lawyers Should Just Ask Teenage Children

Your honor, it’s an eggplant: Lawyers call for guidance on interpreting emoji

by Hamza Shaban for the Washington Post

When judges in Britain hear evidence of a crime, the appearance of an eggplant icon in people’s online chatter may not mean what they think it does.

Noting the rise of emoji in court cases, and the multiple meanings couched in images such as a peach or a bathtub, lawyers in Britain are urging the judiciary to issue guidance on the interpretation of the digital symbols, according to the Times of London.

The icons are increasingly appearing in British criminal, family and employment hearings, the report said, tracking their rise in the United States. But the multiple meanings of emoji are not always readily grasped.

[Anyone can create a new emoji. Here’s an animated guide to doing it right.]

Santa Clara University law professor Eric Goldman has documented the appearance of emoji and emoticons in U.S. court opinions since 2004 and has seen their rapid growth. Fifty-three cases contained emoji in 2018, compared with 33 in 2017 and 26 the year before, according to his research, which tracks court opinions in the Westlaw and Lexis legal databases that reference “emoji” or “emoticon.”

(Emoji are the more recent images of people and objects, whereas emoticons use symbols and punctuation.)

Through emoji, people can communicate a wide range of emotions and actions, but their flexibility as a tool of expression can also provoke misinterpretation. Emoji are often weighted with dual meanings of a sexual or sinister nature. And because in the context of law, courts must frequently assess the meaning of nonverbal communication, the use of emoji can fuel confusion or misdirection, legal experts say.

As the Times reported, emoji communications could be interpreted differently by the parties in a trial, which could color the meaning of sexual communications or correspondence between co-conspirators involved in murder or terrorism. The use of a bathtub emoji can mean a coffin, and an emoji of a face without lips can be used to express intimidation, “or a warning to stay silent,” the report said.

What’s more, people’s devices and platforms themselves may display the same emoji differently, without either the sender or the receiver knowing they are looking at different images, according to Goldman. In a recent interview, he noted that for a time, “Google users thought the ‘grinning face with smiling eyes’ emoji meant ‘blissfully happy,’ while Apple users thought it meant ‘ready to fight.’” That meant a Google user who sent that emoji symbol to an Apple user might have prompted a conflict unintentionally, he said.

According to Goldman’s research, emoji appear in virtually every area of the law, but the most common types of cases with emoji involve sexual abuse — in which the perpetrator and victim exchange sexual banter — and in cases of employment discrimination.

While Goldman has said recent cases with emoji have not broken new ground on interpreting the images in the courtroom, he sees the rise of animated and personalized emoji as a coming challenge for judges and lawyers, as they leave open even more room for multiple interpretations.

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