[Originally published as Emoji and Deciphering Intent in the Digitial Age, by Tanya Kiatkulpiboone and Andrea W. Paris, in Orange County Lawyer Magazine, June 2017, Vol. 59 No.6 on page 42.]
An emoji known as “Face with Tears of Joy” was named the Oxford Dictionaries’ 2015 Word of the Year. See Figure 1. Caspar Grathwohl, President of Oxford Dictionaries, explained that “Emoji are becoming an increasingly rich form of communication, one that transcends linguistic borders[.]” Katie Steinmetz, Oxford’s 2015 Word of the Year Is This Emoji, Time (Nov. 16, 2015, 2:08 PM), http://time.com/4114886/oxford-word-of-the-year-2015-emoji/. Nevertheless, Oxford Dictionaries have yet to add any emoji to the dictionary, not even their Word of the Year, thereby acknowledging their expressive abilities without defining them.
What Are Emoji?
Emoji are small images or icons used to express emotion, ideas, or things in electronic communications. They were created in Japan in the 1990s by Shigetaka Kurita, who worked for one of Japan’s largest mobile phone operators. The name originates from the Japanese terms for picture (“e”) and written character (“moji”). Frequently Asked Questions: Emoji and Pictographs, Unicode Consortium, http://unicode.org/faq/emoji_dingbats.html (last updated Apr. 10, 2017). Kurita recognized that delivery of information would be confined by a cell phone’s limited screen space and sought ways to convey expression beyond mere text. He created the world’s first 180 emoji in just one month, drawing inspiration from the pictures and symbols used in Japanese weather forecasts, symbolic representations of emotions found in Japanese comics or Manga, pictograms (graphic representation of a message, activity, action, or service) that facilitate universal understanding among multinational attendees to the Olympic games, and ideograms (graphic symbols that represent an idea or concept independent of any language) characteristic of certain Japanese and Chinese characters. Mamiko Nakano, Why and How I Created Emoji, Ignition (Oct. 1, 2015, 5:13 AM), http://archive.li/hMYyQ. In 2010, the Unicode Consortium, a non-profit organization that develops a computing industry standard for encoding text, approved a standard set of emoji for use internationally and Apple, Inc. helped popularize emoji in the U.S. through its integration of that set in the iOS 5. Alex Clark, Emoji: The First Truly Global Language, The Guardian (Aug. 31, 2014, 3:00 AM), https://www.theguardian.com/technology/2014/aug/31/emoji-became-first-global-language.
Emoji have the potential to offer clarity to messages. According to psychologist Albert Mehrabian, 7% of our communication is verbal, 38% is tonal, and 55% is non-verbal body language. See Albert Mehrabian, Silent Messages: Implicit Communication of Emotions and Attitudes (1981), available at http://www.kaaj.com/psych/smorder.html. Emoji aid written communication by replacing what may often be conveyed through body language. The cartoonish nature of emoji also tends to convey playful positivity in messages thereby expressing a casual nature of an interaction or encouraging a personal connection. Alternatively, emoji can create confusion with juridical consequences.
Emoji and Intent
Deciphering intent is essential to many legal issues that arise in the workplace such as claims of harassment, discrimination, intentional infliction of emotional distress, fraud, and intentional interference with contract. According to one survey, 76 percent of American workers have used emoji in professional communications. Survey Finds 78 Percent of American Workers Are Emotionally Disconnected at Work, Market Wired (May 20, 2014, 9:05 AM), http://www.marketwired.com/press-release/survey-finds-78-percent-of-american-workers-are-emotionally-disconnected-at-work-1912036.htm. The prevalent use of emoji led to their introduction as evidence in courtrooms and administrative bodies across the country to determine intent. Thus, although easily dismissed as merely cartoon characters, in-house and outside counsel ignore emoji at their own peril.
- Harassment Claims
In the sexual harassment context, counsel and their clients should pay particular attention to variations of kissing face, stuck-out tongue face, wink, smile, smirk, and angry face emoji. See Figure 2.
Certain emoji could contradict the plain meaning of the text and qualify a statement as a joke. One such example is the “Face With Stuck-Out Tongue” emoji or the “:-P” emoticon. An appellate court in Michigan determined that a “:P” emoticon at the end of an allegedly defamatory statement “makes it patently clear that the commenter was making a joke. . . . Thus, a reasonable reader could not view the statement as defamatory.” Ghanam v. Does, 303 Mich. App. 522, 549 (2014). On the other hand, a judge in an unpublished case out of the U.S. Eastern District in Michigan disagreed that the inclusion of a stuck-out tongue emoticon materially altered the meaning of a text message wherein a law student expressed that he wanted another student to “feel crappy” and experience “deep dark pits of depression.” Enjaian v. Schlissel, No. 14-cv-13297, 2015 WL 3408805, 1 (E.D. Mich. May 27, 2015.)
A winking emoji or “;-)” emoticon could result in similarly contradictory interpretations. In In re Shawe & Elting LLC, a Delaware judge decided that the relationship between two business partners, Elizabeth “Liz” Elting and Philip Shawe, deteriorated to the point that it was necessary to appoint a custodian to sell their business. No. 9661-CB, 2015 WL 4874733, 1 (Del. Ch. Aug. 13, 2015). One of the incidents discussed was whether Shawe’s secret purchase of a plane ticket on a flight to Paris across the aisle from Elting was meant to harass or, as Shawe contends, intended as an olive branch. Id. at 23. In concluding that it was the former, the judge pointed to a text message from Shawe to his friends that he “[w]as next to Liz on the plane to Paris and she switched seats ;).” Id. The court concluded that in the context of the case, “the smiley-face emoticon at the end of his text message suggests he was amused by yet another opportunity to harass Elting, who Shawe knew full well would not welcome his presence on the flight.” Id. However, in Lenz v. Universal Music Corp., the district court interpreted a wink emoticon “;-)” as a qualifier that the preceding statement was in jest. No. C 07-3783 JF, 2010 U.S. Dist. LEXIS 16899 (N.D. Cal. Feb. 25, 2010).
Thus, when conducting an investigation or discovery, counsel would be wise to inquire into the meanings that writers and recipients attach to various emoji. Additionally, because emoji often appear differently on different mobile devices, counsel should request to view them as they appear on all devices.
1. Discrimination Claims
Discrimination claims often require analysis of email or text messages between managers and among human resources professionals, many of which may contain emoji. In addition to those discussed above, counsel will need to pay particular attention to emoji used to express skepticism and varying degrees of unhappiness. See Figure 3. An Ohio plaintiff in a wrongful termination case argued that a frowning emoticon in a supervisor’s emails discussing plaintiff’s performance connotes ill-will or malice toward him. Kara v. Ohio Dept. of Tax’n, No. 2012-03794, 2014 WL 713335, 7 (Ohio Ct. Cl. Feb. 21, 2014). The trial court determined that the emoticons, viewed in conjunction with the opinions expressed by the supervisor, did not rise to the level of malice, bad faith, or reckless conduct. Id.
Emoji could also be used to prove, or at least strengthen the argument, that a statement or conduct was motivated by someone’s membership in a protected class. Since Apple’s emoji keyboard allows users to send emoji of the elderly, men and women with different skin tones and ethnicities, religious symbols, and same-sex couples, contentions of bias may now be accompanied by visual representations of protected classes. In light of this, counsel should consider addressing the use of emoji in their clients’ employee handbooks.
2. Contract Disputes
Aside from the implications emoji have on personnel matters, companies should also be concerned with the potential role emoji may have on contractual arrangements. An overwhelming majority of states, including California, have adopted the Uniform Electronic Transactions Act (UETA). Its primary purpose is to “make sure that transactions in the electronic marketplace are as enforceable as transactions memorialized on paper.” Electronic Transactions Act Summary, Uniform Law Commission, http://www.uniformlaws.org/ActSummary.aspx?title=Electronic%20Transactions%20Act (last visited Apr. 20, 2017). Mirroring common law contract rules, an electronic contract must satisfy the prima facie elements demonstrating intent to form a contract: offer, acceptance, intent, and consideration. UETA provisions are codified in California Civil Code Sections 1633.1-1633.17.
A valid contract under UETA also requires an “electronic record” and an “electronic signature.” Cal. Civ. Code § 1633(a) (Deering 2017). An “electronic record” is a record created, generated, sent, communicated, received, or stored by electronic means. See id. § 1633.2(g). Conceptually, almost everything we store on our computers, smart phones, and tablets amount to an electronic record, including PDFs, emails, and text messages. An “electronic signature” is an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record. See id. § 1633.2(h). Common and recognizable electronic signatures include typing one’s name in forward hash formats, such as // and /s/, methods acceptable under the Federal E-Sign Act and throughout the legal industry, or use of digital signature software. As a result, emails, in certain circumstances, may give rise to legally binding contracts.
In J.B.B. Invs. Partners, Ltd. v. Fair, the California Court of Appeal held that defendant’s printed name at the end of an email was insufficient to constitute a proper signature under the UETA, common law, or California Code of Procedure, and reversed the trial court’s finding that the parties executed a valid settlement agreement. 232 Cal. App. 4th 974, 991 (2014). The court reasoned that the settlement offer sent by one of plaintiffs’ attorneys to defendant did not indicate that the parties agreed to formalize settlement through email as required by California Civil Code Section 1633.5(b). Id. at 989. Moreover, there was no indication that defendant intended to sign or authenticate the settlement offer, which contained no signature line or signature block, and the transmittal email advised that additional paperwork was forthcoming. Id. at 992. There was no valid “electronic signature” within the meaning of UETA and the context of settlement negotiations was devoid of defendant’s intent to be legally bound. Id. at 986.
Statutory requirements may set a higher bar for what constitutes an electronic signature in specific circumstances. In the foregoing case, the bar was likely raised by California Code of Civil Procedure Section 664.6, which governs settlements between litigating parties and requires such settlements to be signed by all of the litigating parties.
Real estate transactions will also be held to a higher bar by the passage of Assembly Bill (AB) 2136, which took effect January 1, 2015. 2014 Cal. AB 2136. AB 2136 makes clear that texts and instant messages are insufficient to creating binding contracts to convey real property. Civ. § 1624(d). Text and instant messages used in the context of documenting real estate transactions are foreseeably problematic See generally St. John’s Holdings, LLC v. Two Elecs., LLC, No. 16 MISC 000090 (RBF), 2016 WL 6191911 (Mass. Land Ct. Apr. 14, 2016). See also AB 2136 (offering clarity). However, there has been no guidance, legislative, judicial, or otherwise, with respect to the use of texts or instant messages outside the real estate transactions context.
As a result, we can imagine a text thread between parties exchanging emoji with the potential to convey an intent to agree to proposed terms such as a thumbs-up, A-Okay, handshake, fist bump, high-five, or even hand-holding-pen emoji. See Figure 4. Presently in California, this could be possible outside of a settlement agreement or real estate context, so long as it can be demonstrated that a party possessed the intent to sign an electronic record. Thus, counsel should advise clients who negotiate deal terms electronically, that while the use of emoji in exchanges of email or text possesses the benefits of creative expression and building rapport with another party, such use should be accompanied by unequivocal language.
While the authors of this article recommend exerting prudent care when sending emoji in the course of professional communications and cautioning our clients of the same, we recognize that language is our trade and emoji is a growing language. We may better serve our clients by familiarizing ourselves with emoji, how they are used, and what they mean. Failure to acknowledge or understand their importance may impair our ability to advise and represent our clients. As the saying goes, “A picture is worth a thousand words.”