Emojis represent a specialized dialect that many English speakers struggle with. The same can also be said of legalese. So when the two intersect, things can get complicated, and fast.
The array of symbols that we increasingly rely on for our messaging and social media are already starting to play a role in court cases. As I learned ata recent meetup of theDC Legal Hackers group (yes, such a thing exists), the odds are pretty good that this post-literate language won’t just be used toillustrate a court ruling but will show up in one soon.
AsSusan Brenner, a law professor at the University of Dayton, observed in an (emoji-free!) email: “There are a lot of permutations that COULD come up in US court cases.”
Consider the smiley-face emoticon that began life as a colon and a parenthesis and its winky-face semicolon-parenthesis cousin. They can mean a lot of things: this is funny, I’m kidding, I like you, and so on. How should a judge or a jury read one at the end of a sentence that may or may not be incriminating?
InLenz v. Universal Music Group—the 2010 “dancing baby case,” in which UMG claimed copyright infringement over Prince’s “Let’s Go Crazy” playing in the background of a 29-second YouTube clip of Stephanie Lenz’ kid dancing—a “;-)” in an email ended up helping out Lenz.
Those last two cases didn’t require that much interpretation. But the increasing range of emojis — and their varying appearance in different operating systems — look sure to complicate life for judges and juries for some point.
Benner sketched out one possible scenario: “Terrorists or other ‘bad actors’ are using emoji, probably a specifically created type of emoji, as a way to communicate.”
There’s already a market for software to pick out these inconsistencies — a Washington data-analytics firm calledBoxer Analytics makes software to find and parse these symbols during the discovery phase of a case.
Gabriella E. Ziccarelli, an associate withBlank Rome LLP who gave a presentation on legal emojis at the Legal Hackers meetup, said that lawyers will want to test the emoji literacy of potential jurors. She suggested a possible screening technique: “Show a selection of emojis along with some questions to assess any biases.”
So far, it appears that only one court ruling has featured actual emojis — aBritish high-court ruling from February in which Justice Peter Jackson rejected a police contention that a smiley-face on a note was sarcastic.
But that’s bound to happen somewhere in the United States. Boxer Analytics CEO Joe Sremack, another presenter at the meetup, predicted in an email that “virtually every case involving digital communications will feature evidence that includes emojis within three years — including those at the Supreme Court level.”
So when will an emoji show up in a Supreme Court opinion? “Within 10 years, but likely less,” is Ziccarelli’s guess.
And what will that first SCOTUS-worthy emoji be? Sremack had his own predictions:
“It probably won’t be a happy emoji. The gun emoji is my guess, with the bomb and knife emojis following close behind.”
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