By: Lauren Lee

Imagine being legally bound to a contract with nothing more than a ‘thumbs-up’ emoji. In our ever-evolving digital landscape, each new phone software update introduces an array of new emojis and emoticons to our keyboards. These small digital icons serve as time-saving tools, enabling more efficient expression of emotions and tone. However, emojis and emoticons bring forth the challenge of potential ambiguity, as many lack a ‘defined meaning.’ For example, the “praying hands” emoji is sometimes misconstrued as a “high five” emoji. In the legal realm, while interpreting emojis may be complex, their admissibility as evidence in trials holds undeniable importance.

A seemingly uncontroversial smiley face emoji or emoticon can have significant implications on cases. In 2015, U.S. District Judge for the Southern District of New York, Katherine Forrest, ruled that all symbols, including emojis or emoticons, be read by jury members. Tyler Schnoeblen, a linguist at Stanford, explained how the use of emoticons provides insight into a writer’s intention. A smiley face may indicate politeness, a frowning face may signal disapproval, while a winking face may convey flirtatiousness. More recently, in July 2023, the District Court of D.C. ruled that when the Bed, Bath, and Beyond CEO tweeted a smiling moon emoji, it symbolized “to the moon” or “take it to the moon,” reflecting optimism about the company’s stock. This interpretation influenced investors to purchase the stock, and the court found that the moon emoji was actionable.

While civil cases often focus on interpreting emoji meanings rather than their admissibility, attorneys should prepare for litigation by understanding the bar of procedural requirements when submitting emojis for evidence. Texts or messages containing emojis or emoticons must be relevant for presentation to the jury. Testimony from the sender can offer context and highlight the intent of the sender when they send the emoji. Once relevance is established, the messages must be authenticated, with the admitting party ensuring that both the sender and receiver saw the same image.

Already, tens of cases each year in the U.S. address the meaning of emojis in a legal context and some states have permitted the use of emojis as evidence. In a report sponsored by the State Bar of Texas, the authors suggest that emoticons and emojis resemble hearsay statements, which is admissible evidence. Rule 801(d)(2) of the Federal Rules of Evidence (FRE) defines a hearsay statement as an oral, written, or nonverbal assertion that is made outside of trial. Emojis could be admitted as hearsay statements for evidence if authenticated because they likely fall under the written assertion category.

Admitting emojis as evidence in a trial has its challenges. Undoubtedly, expanding the scope of what is permitted as evidence complicates litigation. The downside of allowing emojis as evidence lies in the potential increase in the duration and cost of litigation, increased reliance on the jury or judge’s interpretation of emojis, and potential for parties to evade liability through emoji use. Additionally, emojis may appear differently on different devices (e.g. Apple products vs. Androids). Admitting emojis as evidence might also lead to unintended agreements or commitments.Despite the increasing complexity of emoji interpretation, their admissibility in trials should be acknowledged. Emojis expand our means of expression and can play a crucial role in conveying nuanced emotional and contextual information, fostering more accurate communication within the legal system. It is vital to understand that language should not be interpreted solely within its plain meaning but also in the context in which it is used. This concept is similar to statutory interpretation canons in administrative law, where various interpretive modes are employed to derive meaning. Emojis and emoticons, in this context, can be likened to symbols that effectively convey ideas and the author’s tone, making them a significant component for establishing contextual evidence in cases. To prepare for the ever-expanding use of emojis and emoticons, courts and attorneys should deploy appropriate tools to develop fluency in this new ‘emoji language.’