Emoji and emoticons are cropping up at a rapidly increasing rate in court cases, and while they’ve yet to be a deciding factor in any cases, Santa Clara University law professor Eric Goldman expects they’ll play a larger role in the future — and courts need to be prepared.
“As unsettled as emoji law is today,” he told The Recorder, “it’s only going to get more complicated as technology evolves.”
Goldman has been tracking all the times the words “emoji” or “emoticon” crop up in various U.S. court databases. His research has turned up 171 cases since 2004, with more than half in just the past two years: 33 in 2017 and 53 in 2018.
These cases rarely hinge upon the use of emoji or emoticons, and the symbols didn’t play a major role in any of the 2018 cases — in some instances, the judges even chose to say “emoji omitted” when reading text transcripts to juries.
But according to Goldman, courts need to acknowledge and attempt to interpret emoji and emoticons as they play an increasingly important role in forming the meaning behind our communications.
“You could imagine if you got a winky face following the text sentence, you’re going to read that sentence very differently than without the winky face,” he told The Verge.
The fact that emoji and emoticons appear differently on different devices also adds to the ambiguity.
Open to Interpretation
Ultimately, the need to understand and interpret emoji and emoticons could lead to the emergence of a new career in the legal system: regional emoji expert.