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One does not simply send an Emoji – Exploring the scope and Ambiguities of Emojis as Evidence – A Critical Study

Computer-mediated communication (CMC) is increasingly invading daily life as a result of the ubiquitous use of computers and the advancement of technology. It provides several benefits, including boosting individual communication continuity, improving relationship quality, and strengthening emotional communication. However, with CMC, the absence of nonverbal cues such as facial expressions, intonation, and gestures might have an impact on information transfer. To overcome this issue, communicators have created new nonverbal cues such as capitalization to replace yelling, multiple exclamation marks for excitement, and emotional symbols for facial expressions. These expressive symbols, also known as an Emoji compensate for CMC’s lack of nonverbal clues and are ideal for social media communication.

Emojis are becoming widely employed in network communication, and how they are used is diversifying as well. They are not only distinguished by their semantic and emotional characteristics, but they are also tightly linked to marketing, law, health care, and a variety of other fields. Emoji research has become a prominent topic in academia, with more and more scientists examining them from domains such as computing, communication, marketing, and behavioral science. The present study seeks to explore the scope and ambiguities of emojis as evidence.

Development of Emojis

Emoji evolved from smileys, evolved into emoticons, then emoji, and finally stickers in recent years. Smiley was one of the original expressiveness symbols, appearing in the 1960s. Smiley is a yellow face with two dots for eyes and a big grin that appears on buttons, pins, and t-shirts. By the early 1980s, this emblem had become well-known, and it had become an indelible part of western popular culture. Differences in human features, platforms, cultural backgrounds, and settings may lead to varied interpretations while utilizing emoji. Emoji usage is heavily influenced by cultural differences. Some emoji uses are intimately linked to one’s cultural background.

Finnish, Indian, and Pakistani users, for example, will utilize emojis that are distinctive to their cultures. Emoji usage is also influenced by the language in which they are used. Emojis have a high level of context-sensitivity while communicating between languages, which means they are extremely reliant on their linguistic and textual surroundings. Emoji can assist users to express feelings and comprehending the content of a text, but they can also cause ambiguity in communication interpretation, resulting in inefficiencies. 

Despite their superficial similarities, cultural history, technical variances, and visual qualities influence how emojis are interpreted. Users’ intended meanings for emojis may differ from their official definitions, resulting in several interpretations of the same emoji. While emojis have been around for a while and are popular on our phones and social media, their use has skyrocketed since COVID-19, even in the workplace. It’s no surprise, that they’re also appearing in court more frequently. Emoji and emoticon references have become increasingly common in U.S. court rulings in recent years, a trend that is certain to continue as they become a standard in our communication.

There have been scores of incidents in which emoji expressions have served as major evidence in sexual harassment, criminal, and defamation proceedings, as well as contract disputes in which emoji expressions have served as legally binding agreements. Emoji evidence isn’t the only thing that’s on the rise. From Zoom video recordings to Slack chat threads, courts are increasingly requesting litigants to provide a wider range of ESI. However, when it comes to capturing and using emoji as evidence, this form of data presents a unique set of technological and interpretive hurdles.

Emoji being used as a piece of evidence in the Courts

Emoji

Previous surrounding facts and circumstances, such as the type and tone of other communication, the relationship, and surrounding elements, will impact how emojis are interpreted when the sender’s genuine meaning is in question. In multilingual situations and situations where communication is taking place across cultures, this will have to be carefully interpreted. In 2016, a guy was sentenced to three months in jail in France after being found guilty of threatening his ex-girlfriend. The accusations were initiated after the man sent the gun emoji in a text message.

According to the court, the gun emoji was interpreted as a death threat in the form of a picture. Emojis have been used in court to hold people to contractual duties. The thumbs-up, fist bump, handshake, and glasses emojis have been construed as establishing an agreement or an intention to engage in a contractual arrangement in civil disputes in the United States. In a judicial situation, the interpretation of emojis will necessitate specialized knowledge, and forensic linguists will be required in courtrooms to convey their professional judgment and aid the courts in the interpretation of this evidence. 

Emojis are a kind of nonverbal communication that necessitates linguistic and legal skills. Forensic linguists are proving to be crucial in ensuring that justice is fair and accessible in courts all around the world. In a multilingual and multicultural South African courtroom, their position will be critical in the interpretation of emojis. With each passing year, emojis are increasingly being used as evidence in court.

According to Santa Clara University law professor Eric Goldman, who has been tracking all references to emojis and emoticons that appear in US court opinions, there was an exponential rise in emoji and emoticon references in US court opinions between 2004 and 2019, with over 30% of all cases appearing in 2018. Emoji and emoticons have rarely swayed the outcome of a case thus far, but as they grow more widespread, the ambiguity in how emojis are shown and what we perceive emojis to represent may become a bigger difficulty for courts to deal with.

Case Studies on how an Emoji is used as Evidence

Supreme Court

Emojis have recently surpassed emoticons in popularity, and they’ve appeared in a variety of instances ranging from murder to robbery. When it comes to cases involving people chatting to each other, we’re likely to see emojis appear more frequently. Emoji can be found in threats between the defendant and the victim in murder cases, and they can be used to infer the defendant’s mental state or whether they had a proclivity to perform the crime. This can occur in criminal law, but it can also occur in contract law. Before a contract is officially formed, there is a lot of back and forth.

After a judge concluded that their use of emoji to a landlord showed interest to rent his property, a couple in Israel was assessed thousands of dollars in fees in 2017. They stopped responding to the landlord’s texts after sending an ecstatic text stating that they wanted the flat, which included a stream of emojis featuring a champagne bottle, a squirrel, and a comet, and went on to rent a new apartment. The couple behaved in bad faith, according to the court, because the icons projected enormous hope, which naturally led to the Plaintiff’s strong reliance on the Defendants’ intention to rent his apartment.

In the case of prostitution, a sex trafficking expert was asked to testify. He claimed that the defendant’s high heels and bundles of cash reinforced the theory that he was charged with sex trafficking, effectively implying that wearing high heels just to earn some money. The defendant also sent a message with the crown emoji, which was claimed to indicate that the pimp is the king. Ultimately, the decision was not based on how emojis were interpreted, although they did provide evidence.

In the employment discrimination case of Rossbach v. Maontefiore Med, the allegation of the plaintiff was that the girl was sexually harassed by her supervisor (Morales). This employment discrimination case involving claims of sexual harassment and wrongful termination was this image purporting to depict a series of text messages sent by Morales to Rossbach. The Court held that the action was dismissed with prejudice as an exercise of its inherent power to penalize and under Fed. R. Civ. P. 37(e) is based on clear and convincing evidence of the plaintiff’s fabrication of an image of a text exchange between her and her supervisor. The plaintiff and her counsel were jointly and severally assessed a monetary sanction in the number of the defendants’ attorneys’ fees, costs, and expenses involved with addressing the plaintiff’s fabrication.

Conclusion

In a nutshell, it can be stated that with the increase in the use of technology the method of courts is changing in interpreting cases. All Courts throughout the world, including the United Kingdom, New Zealand, and France, have been asked to interpret emojis as evidence. As a result, the amount of academic literature on the subject has increased. Emojis are becoming widely employed in network communication at a greater rate, and how they are used is diversifying as well.

They are not only distinguished by their semantic and emotional characteristics, but they are also tightly linked to marketing, law, health care, and a variety of other fields. Attorneys are now well aware that emojis can add nuance and context to what would otherwise be a simple piece of text. Adding a couple of emojis to a statement can completely change its meaning. When you add a silly-faced emoji to something that could seem threatening, it becomes humorous or satirical. Emoji’s universe will only expand from here, and their evidentiary relevance will rise as their use becomes more established in our digital speech. It remains to be seen how the courts will adjust legal concepts and methods to deal with their interpretation issue.

Legal teams, on the other hand, should begin preparing their technical skills to find, collect, and store emoji data right now. Taking a proactive e-discovery approach now, especially as ESI evolves and becomes more complicated, not only helps legal teams and their businesses limit litigation risk and costs, but it also empowers them and their businesses for the future.

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