Approximately, one year ago, I authored a blog about emoticons finding their way into the courtroom as purported evidence of a crime or tort (Texter Beware: Emojis as Evidence).   Although emoticons began appearing in court in 2004, their presence has risen exponentially.  In fact, just last month, Eric Goldman of the Santa Clara Law School reported in the Technology & Marketing Law Blog  (https://blog.ericgoldman.org/archives/2019/01/emoji-law-2018-year-in-review.htm) that the number of emoji/emoticon case references are growing in “a typical exponential J curve.”  Having tracked every U.S. court opinion in Westlaw and Lexis that references “emoji” or “emoticon,” Goldman observed there were 33 such cases in 2017, and 53 such cases in 2018 and only 171 cases in history (whereby 2018 accounted for 30% of the total).  The chart below (created by Goldman) shows the relative frequency of the term “emoji” and “emoticon.”  And, the use could be more extensive as Goldman’s observations are based upon only those cases wherein the word “emoji” or “emoticon” were explicitly referenced.

While the cases that reference “emoji” or “emoticon” are growing in number, it is still rare for a case to turn on the interpretation of an emoji.  Rather, it appears that they are showing up as evidence – and therefore courts have to acknowledge their existence – but often, they are not material.  For example, in the matter of a recent sex-trafficking matter, an expert specializing in sex-trafficking was called upon to testify.  He opined that the emoticons of high heels and bags of money supported the accusation that defendant was engaged in sex-trafficking.  Specifically, “wear your high heels to come make some money.”  Ultimately, the outcome of the case did not hinge upon the interpretation of these instant message emojis, but they did provide evidentiary support for the prosecutor’s case.

However, the same issues raised in last year’s blog remain at the forefront — Judges, attorneys, and legal analysts are all having to figure out what *exactly* defendants and victims mean by strings of emojis (or “picture characters,” translated from Japanese).  And, while hundreds of millions of people likely interact with emoji on a daily basis, whether as authors, recipients, or both, who knew that different platforms depict emojis differently?  For example, the emoji face with the “winky face” looks different across smartphone platforms.  The image as depicted on a Samsung phone, for example, may have a far more sinister look than depicted on the Apple phone.  This difference of depiction could pose a unique problem for interpreting an emoji.

The upshot – emojis and emoticon usage is here to stay.  They will continue to be used as evidence in appropriate cases and will necessarily draw meaning from their context.  And while there have not been many “major rulings” over emoji interpretations in 2018, experts predict it is only a matter of time.  So, if and when your duty to preserve arises, remember that smartphones, IMs, DMs, text messages and other electronic communications have the potential to be repositories for relevant information, including messages replete with emojis.

Have questions?  Please contact me at kcole@farrellfritz.com.