The rise of emoji is causing big problems inside the US judicial system

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The increase in the use of emoji in daily life is reportedly causing issues for the United States legal system, with courts slowly coming to terms with the how to interpret the iconography in evidence and its appearance in other court filings.




Emoji has become a staple of messaging apps and services around the world, with the icon-based communications system also being used in other areas, including video, commercials, and even in TV shows. While the world has been quick to embrace the colorful messaging symbols, the slow-moving US justice system is glacial in comparison, and is having trouble handling their appearance in a variety of ways.

"Emojis show up in virtually every practice area because emojis are showing up across all types of online communications," Santa Clara University law professor Eric Goldman told The Recorder. "Emojis show up most frequently in cases where online chatter is a key source of evidence."

Goldman notes the most common cases they appear in are those involving sexual predation, where they are used for flirting and sexual banter, "often a form of victim grooming." Emoji also feature frequently in employment discrimination cases, for similar reasons.

While the number of court opinions referencing emojis is seeing exponential growth, with approximately 30 percent of the all-time number of opinion references to the emoticons reached in 2018, the usage of them in opinions is far lower than would be expected.

"Opinions routinely omit the emojis altogether, or the judge imprecisely characterizes the emojis in evidence," Goldman claims, with legal research services Westlaw and Lexis typically not displaying emoji. As neither database allows for specific emoji to be searched for in court opinions, Goldman suggests "the court publication process remains woefully under-prepared" for the continuing rise of their use.

The difference in emoji styling across platforms is also thought to be the cause of some lawsuits, despite attempts by Apple, Google, and others to harmonize what is depicted in each. One study referenced by Goldman notes at least 25 percent of respondents "were unaware that the emoji they posted could appear differently to their followers," and in cases where they were shown how a tweet of theirs was rendered across multiple platforms, one in five people said they would have edited or not sent the tweet at all had they known about the differences.

"Those 'regretful tweets' should make lawyers some good money," Goldman adds.

The meaning of individual emoji, or those in groups, is also subject to interpretation by the courts, but they also present unique challenges. Their small size and the fact many emoji look similar makes it easy for a reader to misinterpret the intended meaning from the sender's message.

Similar to regional and community dialects, emoji can develop platform-specific dialects. As an example, Goldman refers to how eggplants and peaches were interpreted sexually because of how Apple depicted each item, but it took a long time before users of other platforms understood their Apple-specific meanings due to appearing differently elsewhere.

This also leads to an issue where an emoji that has the same accepted meaning on multiple platforms could be misinterpreted because of the graphical style. While Android users may see the "grinning face with smiling eyes emoji" and understand it as being "blissfully happy," Goldman suggests iOS users instead interpreted the symbol as "ready to fight," and could take it as an intention to be violent.

"Determining how to apportion liability when both parties make reasonable but different interpretations of the same symbol will lead to many unhappy outcomes," the processor adds.

Goldman advises to judges that they ensure lawyers represent the exact depictions of emoji that their clients saw, as it would be a mistake to assume both parties saw the same imagery. Courts should also make sure the "fact-finder" sees the actual emojis in use to determine their direct meanings, and for the oral characterization of emojis to be prevented in read testimony. Lastly, Goldman advises judges should display the emojis in court opinions, and though Westlaw and Lexis have trouble interpreting them, they should still appear normally in court opinion PDFs.

While courts have work on their hands to refresh their practices regarding emojis, Goldman warns things will get more complicated as technology advances. The use of animated emojis, Apple's Animoji, and Samsung's AR emojis pose "even more challenges for courts to interpret," and will force lawyers to become more familiar with messaging platforms in order to fully understand their cases.

The number of emoji is anticipated to rise later this year, after the Unicode Consortium finalized 230 new emoji that is being added to the roster. It is expected that Apple will incorporate the symbols as part of "iOS 13" and "macOS 10.15" updates later this year.
patchythepirate

Comments

  • Reply 1 of 20
    steven n.steven n. Posts: 1,108member
    One study referenced by Goldman notes at least 25 percent of respondents "were unaware that the emoji they posted could appear differently to their followers," and in cases where they were shown how a tweet of theirs was rendered across multiple platforms, one in five people said they would have edited or not sent the tweet at all had they known about the differences.

    Given we can't agree on the definitions of words, how will we ever agree on the meaning of pictures?
    MisterKitpatchythepiraten2itivguybaconstangrandominternetpersonwatto_cobra
  • Reply 2 of 20
    kestralkestral Posts: 225member
    Pretty easy to interpret the big purple eggplant emoji ๐Ÿ†
    zroger73watto_cobra
  • Reply 3 of 20
    jungmarkjungmark Posts: 6,657member
    Or users can ask what the other meant with the emoji and leave lawyers out of it. 
    minicoffeewatto_cobra
  • Reply 4 of 20
    AppleExposedAppleExposed Posts: 623unconfirmed, member
    Bet they will interpret everything against you.

    kestral said:
    Pretty easy to interpret the big purple eggplant emoji ๐Ÿ†

    Sarcasm? Feminists will love this!
    watto_cobra
  • Reply 5 of 20
    jungmark said:
    Or users can ask what the other meant with the emoji and leave lawyers out of it. 
    What?  And miss out on a big payday for being "harassed"?

    AppleExposedwatto_cobra
  • Reply 6 of 20
    jimh2jimh2 Posts: 118member
    Adds this to the impossibility of interpreting enunciation, facial expressions, cadence, tone, shrugs, eye rolls and other non-written ways to communicate or enhance other forms of communication.
    watto_cobra
  • Reply 7 of 20
    maestro64maestro64 Posts: 4,476member
    steven n. said:
    One study referenced by Goldman notes at least 25 percent of respondents "were unaware that the emoji they posted could appear differently to their followers," and in cases where they were shown how a tweet of theirs was rendered across multiple platforms, one in five people said they would have edited or not sent the tweet at all had they known about the differences.

    Given we can't agree on the definitions of words, how will we ever agree on the meaning of pictures?
    This is so true, I was on a case where text messages (no emoji) and emails were in evidences and people could not even agree on the intent of the written words. The law clearly said the person "intent" has to be X for someone to be guilty and people read the text and said person did intend X and others said there was no way to know or thought they did not intend X. 

    So now they are going to ask people to find someone guilty based on the emojis they are using, yeah that is going to go over well, lucky for us Apple got rid of the emoji gun and now it is a futuristic raygun, so it is like star trak and it only stuns you or like starwar it kills you.
    edited February 8
  • Reply 8 of 20
    kestral said:
    Pretty easy to interpret the big purple eggplant emoji ๐Ÿ†
    You want me to make Ratatouille?
    AppleExposedbaconstang
  • Reply 9 of 20
    AppleExposedAppleExposed Posts: 623unconfirmed, member
    jimh2 said:
    Adds this to the impossibility of interpreting enunciation, facial expressions, cadence, tone, shrugs, eye rolls and other non-written ways to communicate or enhance other forms of communication.

    Again, they'll be sure to use anything against you. That's the only point.
    watto_cobra
  • Reply 10 of 20
    dws-2dws-2 Posts: 227member
    This is probably the emoji that's giving our justice system trouble: โš–๏ธ
    watto_cobra
  • Reply 11 of 20
    Emoji were invented to solve the problem of hidden meaning in ASCII punctuation marks, and now the problem resurfaces in hidden meanings in Emoji? Who'd have thunk it?
    watto_cobra
  • Reply 12 of 20
    FolioFolio Posts: 499member
    Credit of course Japan for emojis. Funny as they already had three writing systems: hiragana, katakana, and kanji. I wonder if calligraphers are getting busy with emojis.
    watto_cobra
  • Reply 14 of 20
    Folio said:
    Credit of course Japan for emojis. Funny as they already had three writing systems: hiragana, katakana, and kanji.
    Re writing systems: No.
      
    Japanese has precisely ONE writing system (called "Japanese"). You're talking about character sets. Any typical language will have multiple character sets. Like English: two phonetic character sets (uppercase letters, lowercase letters), numerals, punctuation marks, other typographical symbols. Japanese is pretty much the same: two phonetic character sets (hiragana, katakana), numerals, punctuation marks, other typographical symbols. Plus one big addition: Chinese characters. All in ONE writing system.

    Re "credit Japan for emojis": Mmm, kinda sorta.

    Emoji were long predated by emoticons, of course. Somewhere along the line came graphical "smileys" mapped to emoticons โ€“ essentially emoji, if not by that name. But did those appear in software (especially messaging software like AIM, Yahoo Pager, etc.) before the first set of characters labeled "emoji" in DOCOMO i-mode phones in late 1999? I'm not sure; a bit of checking turns up conflicting info.

    But either way: emoticons, smilies, and emoji have been happily used and developed by people everywhere. I'm not giving any one political entity any credit.

    watto_cobra
  • Reply 15 of 20
    Bet they will interpret everything against you.

    kestral said:
    Pretty easy to interpret the big purple eggplant emoji ๐Ÿ†

    Sarcasm? Feminists will love this!
    You may have a misunderstanding about feminists, then. Standing up for equal civil rights has no bearing on thoughts of phallic symbols. 
    watto_cobra
  • Reply 16 of 20

    Emoji were invented to solve the problem of hidden meaning in ASCII punctuation marks, and now the problem resurfaces in hidden meanings in Emoji? Who'd have thunk it?
    That reason (resolving hidden meaning of smileys) isnโ€™t mentioned in the wiki history of emoji. It seems more influenced by Japanese pop culture when they were released on a phone in Japan in 1997. (Yes we all know emoticons and smileys existed prior.)

    https://en.wikipedia.org/wiki/Emoji
    edited February 9 randominternetperson
  • Reply 17 of 20
    mac'em x said:
    Folio said:
    Credit of course Japan for emojis. Funny as they already had three writing systems: hiragana, katakana, and kanji.
    Re writing systems: No.
      
    Japanese has precisely ONE writing system (called "Japanese"). You're talking about character sets. Any typical language will have multiple character sets. Like English: two phonetic character sets (uppercase letters, lowercase letters), numerals, punctuation marks, other typographical symbols. Japanese is pretty much the same: two phonetic character sets (hiragana, katakana), numerals, punctuation marks, other typographical symbols. Plus one big addition: Chinese characters. All in ONE writing system.

    Re "credit Japan for emojis": Mmm, kinda sorta.

    Emoji were long predated by emoticons, of course. Somewhere along the line came graphical "smileys" mapped to emoticons โ€“ essentially emoji, if not by that name. But did those appear in software (especially messaging software like AIM, Yahoo Pager, etc.) before the first set of characters labeled "emoji" in DOCOMO i-mode phones in late 1999? I'm not sure; a bit of checking turns up conflicting info.

    But either way: emoticons, smilies, and emoji have been happily used and developed by people everywhere. I'm not giving any one political entity any credit.

    The โ€œJapaneseโ€ language is called Nihongo in Japan.
  • Reply 18 of 20
    jimh2 said:
    Adds this to the impossibility of interpreting enunciation, facial expressions, cadence, tone, shrugs, eye rolls and other non-written ways to communicate or enhance other forms of communication.
    Exactly.

    Reminds me of the classic movie, My Cousin Vinny.  When reading the transcript of the interrogation in court, "I shot the guy?!" is used as a statement of guilt when the punctuation is omitted.

    As to whether emojis are a "big problem" for the judicial system, I expect they come up in something like 0.1% of all cases.
    watto_cobra
  • Reply 19 of 20
    Mike WuertheleMike Wuerthele Posts: 4,339administrator
    jimh2 said:
    Adds this to the impossibility of interpreting enunciation, facial expressions, cadence, tone, shrugs, eye rolls and other non-written ways to communicate or enhance other forms of communication.
    Exactly.

    Reminds me of the classic movie, My Cousin Vinny.  When reading the transcript of the interrogation in court, "I shot the guy?!" is used as a statement of guilt when the punctuation is omitted.

    As to whether emojis are a "big problem" for the judicial system, I expect they come up in something like 0.1% of all cases.
    In total, about 1 in 7 of all cases in Fairfax County, Virginia where a criminal defense attorney is required. About 80% of cases where smartphones are involved. I suspect the number is higher in places like NYC, and lower in less urban areas.
    edited February 10
  • Reply 20 of 20
    MacProMacPro Posts: 18,141member
    Where's Howard Carter when you need him?
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