Updated: Oct 1, 2019
Check out Tara's most recent article in The Lawyer's Daily, with respect to emojis as evidence in sexual harassment, civil cases.
(July 19, 2019, 2:16 PM EDT) -- In an article reported in CNN Business, legalites in New York began to discuss the increasing presence of emojis in court cases. Specifically, emojis such as hearts from managers and C-suite executives, and threatening emojis depicting violent tools, like knives, could potentially constitute evidence of sexual harassment or violence.
When does an illustrated character become an expression of emotion, intent or proof of violation of a prohibited ground under the Human Rights Code? And when can emojis begin to be interpreted in the same manner as winks in e-mails, or verbal threats?
CNN Business states that the number of reported cases having used emojis as evidence in the United States increased from 33 in 2017 to 53 in 2018, and already in 2019, it is at nearly 50. To date, there is not a single court guideline regarding how to deal with this type of evidence — but this shouldn’t come as a surprise, as we are still attempting to navigate the waters around video evidence, even in 2019.
Elizabeth Kirley, an adjunct professor at York University’s Osgoode Hall Law School, researched emojis being used as evidence in court in several countries resulting in a paper called The Emoji Factor: Humanizing the Emerging Law of Digital Speech. One such case is an American case wherein “a message that was sent that was comprised of a fist, and then a finger pointing to the third emoji, which was an ambulance … was pretty clear [to the judge]. I'm going to punch you out so badly that you're going to end up in the hospital.”
In 2015, at the trial of Ross Ulbricht, a man accused of running an online black market, lawyers fought over evidence rules surrounding the use of emojis. Ulbricht’s lawyers argued that the prosecutors omitted critical evidence from their transcriptions of his online chats — specifically, they left out his emojis.
The New York Times stated that judge Katherine B. Forrest has ruled that emojis are admissible as evidence in court. Prior to the ruling, the transcript simply said “emoticon” each time one was used.
In international litigation, which has relied on emoji evidence, an Israeli small claims dispute between a landlord and prospective new tenants, in which the landlord successfully sued for damages based at least partially on emojis in the prospective tenants’ text messages, the judge agreed that the emojis indicated an intent to rent the landlord’s apartment.
The judge found the couple had “acted in bad faith” by then backing out, after the landlord had taken down the apartment listing.
Today there are more than 2,823 emojis set by the Unicode Consortium, ranging from activities to food and drink and facial expressions. But one of the biggest points of contention for emojis in court cases is that they appear differently on varying platforms, depending on your device.
According to the CNN article, although the Unicode Consortium “sets the standard for emojis, software makers, such as Apple and Google, then design versions for their platforms, opening up a path for inconsistencies and miscommunication. For example, the pistol emoji looks like a real gun on some devices and a water or toy gun on others.”
So, what’s the verdict on emoji evidence? In my opinion, it would be best to be careful in establishing your relationships and adjusting your behaviour accordingly. Before you know it, much like e-mail communication, the use of these modes of communication WILL become admissible evidence.
Tara Vasdani is the principal lawyer and founder of Remote Law Canada. Her practice centres on employment law, civil litigation and remote work. She has been featured in Forbes. She was the first Canadian lawyer to serve a statement of claim via Instagram, and you can reach her directly at firstname.lastname@example.org.