Emojis and emoticons are increasingly finding their way into court filings, prompting courts and lawyers to consider their role as evidence.
Courts have had to interpret the significance of emojis in various stages of litigation, such as sustaining a case, finding a genuine issue of material fact, and enforcing settlements.
Last week, the District Court of District of Columbia became yet another one of those courts, interpreting the significance of a moon emoji in order to sustain a securities class action.
“Emojis are symbols,” the court said. “People use symbols as ‘a primitive but effective way of communicating ideas.’”
While emojis themselves may not be described as primitive, they are a ubiquitous form of expedited electronic communication. Naturally, then, they are produced as part of text and email exchanges, as well as social media postings, subject to examination and interpretation during litigation.
Practitioners should not overlook the power of emojis to support or defend against a claim at trial. Just like words, gestures, and symbols, admitting emojis into evidence necessitates a showing of meaning, context, and tone in order to establish relevancy and admissibility. These sometimes silly symbols might just prove vital to your case.
From Emoticons to Emojis
For decades, people have used emoticons, which are clever sequences of keyboard characters, to illustrate a facial expression in their electronic communications. There is the smiley face, generated by a colon and closed parenthesis :). A frown face, illustrated with a colon and open parenthesis :(. A winking face, depicted by a combination of a semi-colon and closed parenthesis ;). There are also other sequences, creatively combined to reflect shock, surprise, and laughter.
Then came emojis: small digital images that have largely replaced the simplistic emoticons in electronic communication.
Emojis first surfaced in Japan in the late 1990s, and made their way to the US by way of the iPhone in the 2000s. Now, there are over 3,000 emoji variations, and new ones to discover with each digital update.
But what do they mean, and how do you get them admitted into evidence?
How Courts Interpret Emojis
An open-ended search of court opinions referencing emojis or emoticons revealed that the first case involving the interpretation of emoticons was in 2004.
In MicroStrategy, Inc. v. Business Objects, S.A., the Eastern District of Virginia considered an email with reference to a “spy” allegedly inside plaintiff MicroStrategy’s business, accompanied by a smiley face emoticon. The court understood the “spy” reference, alongside a smiley face emoticon, as “clearly intended to be playful.” It is likely that without the emoticon, the court might have interpreted the reference differently.
The Tone and Tenor of an Emoji
Emoticons and emojis can certainly add tone to electronic communications, beyond the written word.
In Douglas v. Alfasigma USA, Inc., for example, the Northern District of Illinois in December considered on summary judgment whether three text messages that included a black Santa Claus emoji, sent from a white male employee to his two female black colleagues, amounted to “one-off conduct that is severe enough to show that the workplace was racially hostile.” The court opined that while the text messages were “juvenile, insulting, and boorish,” no reasonable jury could find for the plaintiffs that they were “so frequent or pervasive as to create a hostile work environment.”
Emojis as Assertions
Emoticons and emojis can also substitute words with an accepting thumbs up or a rocketing stock chart.
In Sewell v. Daniel, for example, the Northern District of Georgia in 2020 opined that a seller’s actions, which included a thumbs up emoji, created a material dispute of fact as to whether there was a waiver of buyer’s technical breach of the applicable notice provision.
More recently, in Friel v. Dapper Labs, the Southern District of New York in February found that the “defendants’ public statements and marketing materials objectively led purchasers to expect profits.” The court found that while the word “profit” was not actually used in any of the subject tweets, the defendants’ emojis reflecting a rocket ship, stock chart, and money bags “objectively mean one thing: a financial return on investment.”
The Admissibility of Emojis
Thus far, in civil cases, courts have been focused on the meaning of emojis, and not necessarily on their admissibility as evidence. There has been very little precedential guidance on how emojis are admitted into (or precluded from) evidence at trial.
To establish relevance and reduce any ambiguity for the jury, it is important to elicit testimony from the sender of the emoji about why they used the particular emoji and what meaning they intended to convey with it in their communications. Other areas of inquiry can include whether the sender has used similar emojis in similar contexts with other individuals, including the recipient. It is equally important for the recipient to testify about what meaning they gave the emoji in the context of the communication.
After their relevance has been established, electronic communications—and their accompanying emojis—must be authenticated.
Particularly with respect to emojis, the admitting party must establish that both the sender and recipient of the messages were looking at the same emoji, since the appearance of one can vary based on different operating systems.
It is worth getting ahead of this issue during discovery. Start by obtaining a copy of the electronic communications through a request for production, and comparing it to those obtained from your client or through third-party subpoena. Next, inquire about the similarities and differences of the emojis seen by the sender and recipient during fact witness depositions, and establish whether it substantially changes the meaning and significance of the emoji. And finally, consider issuing a request for admission, by attaching a screenshot of the electronic communication and emoji, for authentication purposes.
Emojis as Hearsay Evidence
Once the electronic communications and emojis have been authenticated, they may be admitted as a statement by a party under Rule 801(d)(2) of the Federal Rules of Evidence (FRE).
However, third-party electronic communications may be subject to hearsay objections if the emojis are being admitted for the truth of the matter asserted.
In some circumstances, emojis are comparable to physical gestures, like a thumbs up or a nod of the head. Gestures can constitute an out-of-court “statement” under FRE 801(a). The definition of “statement” includes “nonverbal conduct, if the person intended it as an assertion.” Gestures, therefore, can be subject to the rules of evidence regarding hearsay, if they are intended as an assertion.
Similar to gestures, the hearsay rule may also apply to an emoji. To overcome a hearsay objection, the admitting party must argue that while the emoji contains or expresses the truth of a matter asserted, it is admissible under a hearsay exception, such as excited utterance or state of mind. Failure to prove an exception applies may prevent the emoji from being admitted into evidence.
Preparation is key in understanding the meaning and significance of an emoji in a particular case. They may seem benign at first glance, but emojis play an important role in electronic communications, and they might play an ever bigger role in your case.
Bloomberg Law subscribers can find related content on our Discovery practice page and our Litigation Intelligence Center resource.
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