Terry McLaughlin: What’s in an emoji? Apparently a lot | TheUnion.com

Terry McLaughlin: What’s in an emoji? Apparently a lot

Terry McLaughlin
Laura Mahaffy/lmahaffy@theunion.com | The Union

What could be bad or dangerous about a harmless smiley face? Evidently, more than I ever imagined!

“Emoji” is defined by the Oxford Dictionary as a “small digital image or icon used to express an idea or emotion in electronic communications.” Wikipedia defines “emojis” as “ideograms and smileys used in electronic messages and web pages.”

Originating on Japanese mobile phones in 1997, smiley faces and other types of emojis have become a fact of life, which most would consider simply an easy or fun way to convey thoughts or feelings. In recent years the use of emojis has become commonplace in all sorts of communication, including in the workplace.

Emojis have become so prevalent that in 2015 the Oxford Dictionaries’ Word of the Year was a pictograph called “Face With Tears of Joy”, chosen as the “word that best reflected the ethos, mood and preoccupations of 2015.”

Emojis are easy to misinterpret without context and attorneys are faced with arguing about these interpretations, while the courts struggle to handle the nuances.

While Apple’s emoji debut consisted of 54 emojis primarily made up of yellow smiley faces, iPhone now offers hundreds of emojis, representing different races, genders, cultures and religions. Today, there are more than 2,800 emojis ranging from expressions, to activities, to food and games. Data shows that over 10 billion emojis are sent each day throughout the world and, according to law.com (10/18/18) “Approximately 92% of all people who communicate online or through text messages on a smartphone use emojis, with more than one-third of them using emojis daily. Analysts have referred to the uptick in emoji use as ‘watching the birth of a new language.’”

So what’s the problem with a harmless smiley face?

It may surprise you to learn that the use of emojis could potentially create legal liabilities for the sender. They are popping up in a wide variety of legal matters including contract disputes, sexual harassment and discrimination cases, and even murder cases. From 2004 to 2018 there were 171 United States court opinions that referenced emojis or emoticons, according to Eric Goldman, a professor at Santa Clara University School of Law, and an “emoji law scholar.” These cases have spiked, with 33 court decisions in 2017, 53 in 2018, and nearly 50 in the first half of 2019. Emojis are easy to misinterpret without context and attorneys are faced with arguing about these interpretations, while the courts struggle to handle the nuances.

Emojis mean different things to different people, which can be a serious problem in which business communications can easily become miscommunications. There are cultural differences as well — the thumbs up gesture is generally seen as a positive expression in the United States, but it is viewed as offensive or vulgar in the Middle East. In China, a smiley face emoji may be mistaken for sarcasm. To further complicate the miscommunication, different technology platforms depict emojis differently. An emoji transmitted by an iPhone may look quite different when received on an Android device, without the parties realizing they are viewing disparate images.

Emojis found in emails and other business communications are being cited as evidence in an increasingly growing range of legal cases. As an example, smiley face emoticons became important evidence for a plaintiff in an employee termination case related to a possible violation of the Family Medical Leave Act. In discussing the plaintiff’s dismissal, managers at the company sent each other internal emails with smiley faces. Counsel for the employee argued that these smiley faces were evidence that the company was happy to terminate the employee, which contradicted their testimony regarding why she was fired (Apatoff v. Munich Re America Services Inc). Ultimately, the court denied the company’s motion for summary judgment against the plaintiff’s claim, and the smiley face emojis were cited as a key piece of evidence.

A court ruling in Israel in 2017 underscores how parties discussing a proposed business arrangement can be damaged by their varying interpretations of emojis. The case of Dahan v. Shacaroff involved text messages between a property owner and a prospective tenant. After discussing the rental of an apartment, the prospective tenant sent a message to the landlord which included a series of emojis depicting, among other things, smiling faces, dancing women and champagne bottles.

The landlord took this to mean that the prospective tenant wished to rent the property, and the landlord proceeded accordingly. When the tenant did not rent the apartment, the landlord sued for damages. An important aspect of the case involved the court’s analysis of the emojis and the implications about the prospective tenant’s state of mind and intentions.

The court ultimately ruled in favor of the property owner, concluding that the landlord reasonably relied on the series of emojis, which combined to convey “great optimism” and an absence of doubt about the transaction. The court did not find that a contract existed, but it did find that the prospective tenant had violated a duty to bargain in good faith and was therefore liable for damages.

Individual businesses may need to determine whether the use of emojis is consistent with their mission and whether their use can impact the perception of the company’s professionalism. Companies would be wise to integrate the acceptable usage of emojis into their workplace training and policies, or consider prohibiting their use in business communications altogether.

Who would have guessed that we could be stepping into a potential legal minefield when simply sending a friendly smiley face at the end of our message?

Terry McLaughlin, who lives in Grass Valley, writes a twice monthly column for The Union. Write to her at terrymclaughlin2016@gmail.com.

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