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Using Emoji’s – When the Smiley Becomes Serious

 By Judith Griessel, Griessel Consulting

 

The use of emoticons or emoji’s has become entrenched in how we as a society communicate today. It has also found its way into business and official communications. But few appreciate the fact that such use may have legal consequences and could result in the sender entering into binding legal agreements, or potentially being held liable for infringements of human rights.

 

Introduction

As a more visual society, we are adjusting to a new writing medium, driven by developing technology, such as smart phones and tablets. With fast-paced text-speak, social media and Apps that require limited characters, it has never been truer that ‘a picture is worth a thousand words’. So the use of these little icons speeds up communication and we can convey a range of emotions with a single key stroke.

 

Emoticons were being used as far back as 1982 to supplement online language; but it really exploded with the emergence of text-messaging. The emoji originated from Japan in 1993 and soon became a whole new pictographic language. According to research by the technology platform Emogi, it has become the fastest growing language in history and emoji’s are being used by 92% of the online population. Text-speak tend to lose context in the absence of non-verbal cues like nodding, smiling or frowning, and sarcasm or humour may be totally missed. Emoji’s put those back and provide powerful nuances to online communication. It can stand in for a facial expression, or clarify context.

 

Our language is therefore evolving to include visual representations to show our feelings – very much like the old Egyptian hieroglyphics. The Egyptians, too, were pressed for time due to the time-consuming carvings into rock - as the saying goes, as much as things change, they stay the same…! Emoji’s are used to colour the meaning of a word or phrase in the digital space and the inclusion of a single emoji can alter the meaning of the accompanying text.

 

Interpretation and use

Whilst emoji’s are typically seen as playful additions to an informal message, their widespread use has seen them also included in work message groups, commercial transactions and business- or work-related communications.

 

Examples of commercial application are social media companies seeking to measure emoji use to quantify emotional states and produce commercially useful data; advertising; or customers communicating with online stores to give feedback on products and deliveries.

 

Emoji’s are however often capable of multiple interpretations, which could result in an ambiguous representation about goods or services, or intentions. Just as with any particular word or a laugh, it’s a matter of context and interpretation to determine what the intent is, based on one symbol.

 

So, how do we interpret a particular emoji when we receive it, or choose one when we want to send a message? One could find several different websites providing meanings. Also, for emoji’s to function across different devices, they need to exist in Unicode, which includes definitions of what each character/image/symbol means. But – none of this is an official dictionary and such definitions have little to say about the use of symbols in different cultures, relationships, and so on. New emoji’s are also added at a rapid pace. This means there is of necessity always a margin for ambiguity.

 

What is clear, however, is that the use of an emoji has an impact and bears consequences. Whilst this is still fairly new in South African law, there are many legal precedents internationally, which are likely to be followed in our courts as well.

 

Legal consequences

Some examples:

  • When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren’t ignored. In the USA, a post containing an emoji of a police officer and three gun emoji’s pointing at it, resulted in the arrest of the sender on charges of a terrorist threat / a threat against police. They said they felt intimidated and harassed.

  • Also in the USA, an anonymous post on a message board aimed at a co-worker, containing certain comments and an emoticon showing someone sticking their tongue out, found its way to a defamation suit where the court found that, “the joking, hostile, and sarcastic manner of the comments, the use of an emoticon showing someone sticking their tongue out [:-P] … were made facetiously and with the intent to ridicule, criticise, and denigrate plaintiff rather than to assert knowledge of actual facts”.

  • In an Israeli case, the landlord of a property received a text from prospective tenants declaring their interest in the advertised apartment, asking when they could discuss the details and following it up with a range of celebratory emoji’s. The landlord removed the online listing based on this, but then they did not turn up for the meeting and fell out of touch. He was awarded damages by the court for the loss of prospective rental income when he had acted in response to the misleading text message.  

 

In South Africa, documents from an electronic source are admissible as evidence, if it complies with the legal requirements. (The Electronic Communications and Transactions Act.) Data messages are enforceable in our law and emoji’s or Unicode messages could therefore also be used to prove facts relating to the communications between the parties.

  • Using emoji’s such as a thumbs-up, smiley face, a bottle of champagne or anything that creates the impression of acceptance or agreement in the mind of the receiver in official correspondence when negotiating an agreement, may contribute towards a conclusion that a binding contract between the parties exist.

  • If the use of an emoji constitutes misrepresentation that is wrongful, fraudulent or even negligent and causes someone harm, this could lead to civil action for delictual damages. A similar scenario may arise if the misrepresentation induced someone to enter into a contract.The use of emoji’s in a manner which is intended to defraud a person, constitutes cyber fraud.

 

Then of course there are the more indirect consequences – even in social interaction – when the use of emoji’s in a certain context can point to (sexual) harassment, ridicule, unfair discrimination and the like.

  • The Promotion of Equality and Prevention of Unfair Discrimination, 2000 prohibits hate speech and harassment in the context of grounds such as race, gender and disability. It is not required for the sender to have actually had the intention to be hurtful – if an objective assessment of the circumstances determines that a reasonable person would have believed there was such an intention, this would suffice.

  • In 2016, a complaint was lodged with Unicode (who universally choose and encode icons) that emoji’s were strengthening the gender divide. The argument was that all the “action” and career-specific emoji’s were male. The female emoji’s are dancing, getting married or grooming themselves, flipping their hair, painting their nails or getting a head massage. They claimed that with people growing up with a phone in their hand, this was a subtle mould for fostering prejudice.

 

 Conclusion

While emoji’s may be fun, fast and mostly endearing, the reality is that they amplify the message and portray the state of mind of the sender. Its interpretation is rife with ambiguity from person to person and from culture to culture. In a particular context, even good intentions may get you more than you bargained for – whether it is business-related or on a social level. It literally represents “a thousand words” and should be used with circumspection.

 

Avoid unnecessary risk and be alert, especially in commercial or business-related communications, not to create an incorrect impression or belief in the mind of the receiver.

 

For more information, please contact Judith at

 

 

 

 

 

 

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