Photo Credit: Jewish Press

Emojis are increasingly popping up in court cases and are presenting a unique challenge for judges and jurors.

Is a boss who punctuates a get-well message to a sick employee with a smiley face emoji with heart-eyes being friendly or flirtatious? Does a message with a gun emoji constitute a threat or a joke? These are some of the questions courts are grappling with as emoji usage increases.

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If emojis had clearly-defined meanings, perhaps the problem wouldn’t be so great. But they don’t. A winky face emoji can represent teasing, joking, or sarcasm. An unamused face emoji can signify disappointment, depression, suspicion, or simply “I’m not unimpressed.” Pinpointing exactly what a sender had in mind when he or she sent an emoji is not easy.

The problem is further compounded by the fact that some emojis look different on different platforms. The pistol emoji, for example, looks like a toy or water gun on some platforms, which is harmless, and like a real gun on other platforms, which can be interpreted as a threat.

The same is true of the grinning emoji. On some platforms, it looks cheerful and on others it actually looks scary. According to one study, a significant percentage of Twitter users said they would not have used certain emojis had they known how they appeared on their followers’ feeds.

Finally, culture plays a role in emoji choice and interpretation. The thumbs up emoji, largely regarded positively in American culture, can be considered offensive by some in the Middle East. In the U.S., an emoji with smoke coming out of its nose symbolizes anger. For many in Japan, it indicates triumph.

Context needs to be taken into consideration as well. Some emojis have specific meanings in certain industries and no meaning in others.

One interesting emoji-related case took place in Israel. After seeing an apartment, an Israeli couple sent an enthusiastic text with a series of emojis – including a champagne bottle, a comet, and a victory sign – to the plaintiff. The plaintiff interpreted their emojis to mean that the couple intended to rent his apartment.

The couple subsequently ghosted him and rented another apartment. The plaintiff sued the couple for 14,500 shekels (approximately $4,000) and an Israeli court in 2017 ruled that the couple acted in bad faith by sending happy emojis, causing the plaintiff to assume they were renting his apartment, and then renting elsewhere.

As courts allow emojis to be introduced as evidence, we will likely see more cases where emojis are used to determine the party’s intent. This development is largely positive since emojis are a critical mode of communication, especially among younger generations. But ambiguity surrounds many emojis, and courts will need to figure out how to effectively navigate the “grey area.”

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