Could Emoji Get You Into Legal Trouble?

July 10, 2019

Courts are increasingly having to interpret how people have used emojis. You may make you rethink how you’re using some of these small icons in your messages.

For example, an emoji with a heart attached to your text message—could that be construed as sexual harassment in some incidents? Or could a knife emoji represent a personal threat? Emojis are being scrutinized most often in some recent sexual harassment and criminal cases, CNN Business reports.

“Many courts haven’t had to deal with the emoji much, but the numbers are up and it will likely increase,” Jason Levine, Vinson & Elkins partner, told CNN Business. “Judges aren’t prepared for the influx, especially ones who are older and may not be familiar with newer vernacular.”

Emojis are popping up as fodder in workplace lawsuits. For example, in an employee termination case, the manager sent a series of smiley face emojis in a message when announcing an employee had left. The plaintiff’s lawyers asserted it was evidence that the company was happy to let her go.

"Someone may use threatening symbols, a gun, a pointed finger, and then behind it put a symbol for 'just joking,'" attorney Karen S. Elliott of Eckert Seamans Cherin & Mellott told CNN Business. "There is a lot that could get lost in the translation. Was it a joke? Or was it serious? Or was the person just using the emoji to hedge so that they could later argue it was not serious?"

Emojis can be misinterpreted without text accompanying them, notes Stephanie Tomsett, an analyst with ABI Research. A face with sunglasses could be used to show a sunny day as well as feeling cool or an attitude of “deal with it.” The emoji with smoke coming out of the nose could be construed as “angry,” but it’s actually intended to mean “triumph,” she notes.

"Emojis cannot be considered a universal language," Tomsett told CNN Business. For example, the thumbs-up gesture could be considered offensive and vulgar in the Middle East, while it’s a sign of approval in other parts of the world. A smiling face emoji can be considered sarcastic in China.

Also, there can be inconsistencies in how emojis appear on, say, an Apple iPhone versus a Samsung Galaxy device. For example, the pistol emoji may appear as a real gun on some devices but as a water gun or toy gun on others.

In a 2016 survey, participants rated popular emoji characters on Android and iOS as either positive or negative. The answers showed a lot of variation. For instance, an emoji called “ a grinning face with smiling eyes” was interpreted by some people as “blissfully happy” on an Android display. However, on an iOS device, respondents said it looked like it was “ready to fight,” according to the study from University of Minnesota researchers.