By: Lisanne L. Mikula, Esquire
A picture may be worth a thousand words, but it’s also prone to at least a thousand interpretations.
I’ve often wondered what our Paleolithic ancestors would think of modern attempts to interpret cave art. Consider this Smithsonian National Museum of Natural History photo which shows a 30,000-year-old handprint from Chauvet Cave in France:
Is this the artist’s “signature”? Is this an attempt at immortality—to leave an impression which would last long after our ancestor shuffled off this mortal coil? Or did someone ignore the “Wet Paint” warning at the entrance to the cave?
On a daily basis, modern humans create millions of their own versions of cave paintings in text messages and social media each time they use an emoji—those tiny little pictures originally developed to be a global language to communicate emotions and ideas. The frequency of use of these symbols, and their impact on modern communications, cannot be overestimated. The Oxford English Dictionary’s 2015 Word of the Year was the emoji 😂, or “face with tears of joy.”
That last sentence illustrates—literally—a common problem inherent in interpreting the meaning of an emoji for both its sender and its recipient. The word processing system I am using to create this blog post depicts the “face with tears of joy” emoji as an outline of a cartoon face with odd bubbles on the tops of its cheeks—a face which, while clearly joyful, doesn’t look particularly teary. The platform on which this blog is posted will not permit us to reproduce how this emoji appears in my original word processed file. Sure, we’re lawyers, not IT gurus, but I would still bet a Philly soft pretzel that any phone’s keyboard produces a different image for that same emoji, and I’d up the ante with a side of Cheese Whiz that the image produced by an iPhone differs from the image created by an Android, and that the images created by any phone appear altered depending on the web platform being accessed.
The difference in the appearance of a “tears of joy” emoji may not be too significant; however, for certain emojis, the difference across platforms can be drastic and impart a completely different meaning. For example, until a few years ago, most platforms had an emoji for a “pistol” which looked much like a cartoon depiction of a firearm. In response to concerns of law enforcement and the public, many platforms changed the “pistol” emoji to a toy-like water pistol. However, not all platforms have modified the “pistol” emoji.
Imagine the following situation: a group of friends are planning a pool party, and one partygoer, using a phone keyboard, posts a public message on a social media platform stating, “Watch out, Lisanne, I’m coming for you! [pistol emoji].” The “pistol” emoji on the poster’s phone keyboard depicts a toy water gun; however, the social media platform interprets the code for the “pistol” emoji and posts its own version—an image resembling a handgun. The lack of uniformity across platforms transformed what the sender intended to be a joke about soaking someone with a water gun into what could be interpreted by a reader of the post as a violent threat.
Even where the image is not significantly altered across platforms, the interpretation of an emoji differs depending on, for example, the relationship between the parties, the context of the communication, and, because the meanings of emojis change, the date of the communication. For example, an Israeli court found that a string of emojis in a text message sent by a couple to a prospective landlord—which featured dancing figures, a champagne bottle, a squirrel, and a comet—signified that the couple had agreed to lease an apartment. The couple had unsuccessfully argued that the emojis simply showed they were happy with the apartment, and did not indicate they were celebrating having reached a deal to rent the property.
As emojis appear with increasing frequency in written communications presented as evidence in courtrooms, courts are grappling not only with the interpretation of these emojis, but whether the applicable rules of evidence permit the court to even consider emojis. A jurist unfamiliar with the prevalence of emoji use might conclude that only the words of the communication are relevant and ignore emojis as superfluous decoration. While such a ruling may have exonerated the Israeli couple from liability for rent for an apartment they claim they did not agree to lease, ignoring emojis—which are used millions of times a day across the globe to communicate thoughts, emotions, and ideas—ignores the means by which our world now communicates via electronic media.
What those emojis mean is a question for the ages—much like that ancient handprint in Chauvet Cave.
The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur. To learn more about the full range of our specific practice areas, please visit www.dioriosereni.com or contact Lisanne L. Mikula, Esquire at 610-565-5700 or at [email protected]
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