29/08/2024
SOCIAL MEDIA: EMOJIS AND LEGAL IMPLICATIONS OF THE USE OF SAME
Hieroglyphics is the writing system of ancient Egyptians used for inscriptions mostly on walls of temples and tombs, as well as statues, coffins, and sarcophagi. These were created for eternity, either for the gods or for the afterlife. Some examples are craftily carved and look more like art than writing. There are about 500 common signs referred to as hieroglyphics. These were the formal writing systems used in ancient Egypt for writing the Egyptian language.
With the advancement in science and technology, particularly the advent of social networking, wordless communication has blossomed with the use of:
Emoticons (keyboard-generated), Emojis (software-generated), GIFs, stickers, memes and pictures.
Computerized social networking continues to gain prominence in the courtroom and the diverse nature of case law springing up across the world indicates that the legal implications surrounding its use are limitless.These have so many similarities with hieroglyphics. It will be safe to say that Emoticons, Emojis and GIFs are modern applications of hieroglyphics.
PROBLEMS SURROUNDING THE INTERPRETATION OF EMOJIS
Effective communication relies on the sender expressing an exact idea to the receiver, which can be problematic when the receiver cannot interpret the message. Emojis, as wordless communication, can have vague or non-existent meanings, depending on the circumstances.
Emoji interpretation is hindered by their lack of universal meaning due to cultural and geographical differences. For example, the hands-up emoji in China means 'praise', while the smiley face emoji in China means ‘stay away'.
Emoji interpretation is complicated by cross-platform/OS discrepancies. For instance, the astonished face emoji, which appears in 2016 variations, may not be interpreted as "astonished" by Google, Facebook Messenger, or Samsung. Despite efforts to unify emoji implementations, there are still differences that need to be considered. This particular problem is best illustrated in the hypothetical emoji equivalent of the confusion in the classic PEERLESS CASE [RAFFLES VS. WICHELHAUS (1864) 2 Hurl. & C. 906].
In the course of contract negotiations, the sender responds to a contract offer with text that could be interpreted as acceptance but adds an emoji intended to send a mixed message of sarcasm. However, the recipient platform depicts the emoji differently and the recipient sees an emoji that does not communicate sarcasm in the same way.
Due to the cross-platform discrepancy, the recipient reasonably does not perceive the sender’s intended sarcasm, believes the sender accepted the offer, and detrimentally changes her position based on that belief .Is there a valid contract? Can there be said to be meeting of the minds?
LEGAL IMPLICATIONS OF THE USE OF EMOJI
Emojis have come to stay in the use of our daily communications. They are increasingly being recognized not merely as additions or ornaments to speech, but as a legitimate form of communication.
Emojis are visual representations of emotions, expressions, and ideas, allowing individuals to add nuance and context to their messages. They can help convey tone, introduce youthful exuberance, humour, or emotions that might be difficult to express through text alone.
In recent times, a lot of unintended results have emerged from the misinterpretation of emojis, especially in workspace interactions and some of these issues have started making their way into the court room for resolution. Often, people use emojis in formal and informal communications without necessarily considering the context or the meaning that the recipient could derive from it. For example, is the use of a gun, bomb or knife emoji considered a terror threat? Does a heart emoji sent by a boss to an employee constitute s*xual harassment? Can an emoji be defamatory? These are only but a few of the issues that have arisen for judicial interpretation on the use of emojis. Due to various cultural perspectives, the interpretation of emojis is severely complicated by the lack of a universal meaning. What is acceptable to one person might be grossly offensive to another. For instance, the thumbs up emoji which generally signifies acknowledgement, confirmation of mutual collaboration and agreement, in some context, is considered rude and abrasive in other instances especially by younger users.
Clearly, the importance of exercising caution when using emojis, especially in formal correspondences, cannot be overemphasized given its subjectivity to varied interpretations. Although, there isn’t an abundance of judicial opinions carefully parsing the meaning of emojis or even discussing the methodology for discerning their meanings, there is a strong likelihood that soon enough, the legal space would be awash with emoji- related cases. We hold this view because, despite the informality associated with their usage, emojis are rapidly becoming recognized as a valid form of business communication, evident from some of recent decisions of foreign courts which we will discuss subsequently.
Unfortunately, Emojis in Nigeria are underexplored in law due to lawyers' lack of consideration for their impact on written communication. There is currently no case law addressing issues arising from emojis or their use in daily transactions, highlighting the need for further investigation.
EMOJIS AND CONTRACT FORMATION
Depending on the circumstances, using an emoji can result in the creation of a binding relationship between parties. The Court of King’s Bench in Saskatchewan, Canada, SOUTH WEST TERMINAL LTD. V ACHTER LAND 2023 SKKB 116 ruled that the use of a thumbs-up emoji in a text message satisfied both the writing requirement of Saskatchewan's Sale of Goods Act(S. 6(1) of The Sale of Goods Act) and also constituted acceptance of an offer even though the defendant insisted that his use of the thumbs-up emoji in a text message only served to acknowledge receipt of the draft contract that was shared, but did not signify his acceptance of its provisions. In reaching this decision, the Judge considered the similar nature of past correspondences between both parties and concluded that a reasonable person would understand the emoji as an acceptance of the contract terms offered. The judge, in compelling the farmer to pay $61,442 for breach of the contract, reasoned that the emoji is just as valid as a signature and that courts must adjust to the “new reality” of how people communicate
In other words, casually sending a thumbs-up emoji, a handshake emoji or even a smiley face in response to a message putting forth a proposal or offer to do business may be the same as stating, I agree to your terms Likewise, sending a thumbs-down or a sad or angry-face emoji could be equivalent to a rejection of the terms put forward by the offeror. At the minimum, replying to such a message with an emoji may convey contractual intent.
Also in Israel, the case of DAHAN VS. SHACHAROFF [HERZLIYA SMALL CLAIMS Ct. Feb. 24, 2017] comes to mind wherein Judge Amir Weizebbluth in his judgment stated:
‘The text message sent by the defendant… included a smiley, a bottle of champagne, dancing figures and more. These icons convey great optimism. Although this message did not constitute a binding contract between the parties, it naturally led to the Plaintiff’s great reliance on the Defendant’s desire to rent his apartment…These symbols which convey to the other side that everything is in order were misleading.’
The positive emojis signaled interest, according to the judge, and the landlord reasonably relied on the defendant’s ‘optimistic language’. The judge awarded the misled landlord damages of over 2,200 dollars.
EMOJIS AND DEFAMATION
Emojis may seem harmless, but recent case of BURROWS VS. HOUDA, [(2020) NSWDC 485] suggests that emojis can give rise to an action for defamation because they can convey a defamatory meaning. Here, the defendant tweeted a link to an article about the plaintiff’s disciplinary case with a zipper-mouth face emoji, the judge, referencing an online emoji dictionary, opined that most social media users would have negative impressions of the plaintiff as the tweet conveyed false and defamatory assertions, including that she had been disciplined due to misconduct.
EMOJIS AND CRIMINAL INTENT
Some Emojis have been shown to depict the criminal intent of the sender. Such emojis as the fist, gun, etc are classified in this category and could be interpreted as expressing the criminal intent to attack you and put you in the hospital. This was the exact message sent by two men taken into custody for stalking charges in South Carolina.
In a Massachusetts murder case, it was successfully argued that the defendant’s use of an emoji with Xs for eyes coupled with the nickname of the victim suggested a premeditated homicide and not accidental death as the defendant argued.
EMOJIS AND THREATS
Perhaps the most troubling use of emoji is where it is unclear whether they connote, modify or amplify a criminal threat. This is the main point of decision in New York City wherein a teenager was arrested for making terrorist threats after posting a Facebook status with a gun emoji pointed at the emoji of a police officer.
This was also the case in New Zealand where a judge considered the role of the emoji in a Facebook message sent by a man to his ex-partner. The man wrote, “you’re going to f***ing get it” along with an airplane emoji. Concluding that the message and emoji generally conveyed that the defendant was “coming to get” his ex-partner, the judge sentenced the accused to 8 months jail on a charge of stalking.
Emojis also feature cases involving cyber bullying and harassment.
EMOJIS AND SEXUAL HARASSMENT
The use of certain emojis in communications can lead to s*xual harassment claims or grounds a lawsuit. Sexual harassment is punishable under both Federal and State laws in Nigeria, and the National Industrial Court of Nigeria has been praised for taking the lead in addressing workplace s*xual harassment through its judgments and rules of court. Sexual harassment includes unwelcome displays of s*xually explicit pictures, objects, jokes, insults, or graphic comments about a person's body (Section 46 of The Violence Against Persons (Prohibition) Act 2015 states that s*xual harassment means “unwanted conduct of a s*xual nature or other conduct bases on s*x or gender which is persistent, serious and demeans, humiliates or creates a hostile or intimidating environment and this may include physical, verbal or non- verbal conduct.” See similar provision in Section 63 of the Ekiti State Gender – Based Violence (Prohibition) Law 2019). The court will always consider the surrounding facts and context of use, such as the type of emojis and frequency of incidents, when arriving at a reasonable decision. However, it is unlikely that the use of emojis cannot contribute to the finding of s*xual pervasiveness in a modern-day workplace. The court looks at the surrounding facts and analyzes the totality of the circumstances, including the emojis used in denying the defendant's motion for judgment on the pleadings.
The red lipstick emoji was a topic of controversy in a California case. The red lipstick emoji became an issue in Stewart vs. Durham [3:16-CV-744-CWR-LRA (S.D. Miss. Feb. 9, 2017)], a California claim of s*xual harassment where a female potential employee allegedly responded to s*xually suggestive texts with a red-lipstick kiss emoji, raising the issue of whether the kiss implied that she welcomed his advances.
HOW COURTS ATTEMPT TO INTERPRET THE USE OF EMOJIS
Emojis in daily transactions prompt court interpretation in matters. Courts attempt to understand context, but may only consider emoji meaning in self-explanatory cases. An example is the US case of COMMONWEALTH OF PENNSYLVANIA VS. FOSTER [J-6-2019, (Pa. Aug. 20, 2019)], where a defendant on probation for a drug-related conviction raised the suspicion of his probation officer when he posted photographs depicting guns, drugs and money along with three pill emojis.
Courts often interpret wordless communication, relying on surrounding circumstances and examining emojis like smiles and sad faces. These messages may seem innocent or harmless, but their meaning may vary depending on the context and community used, affecting the sender and recipient's interpretation. In the 2014 US case of GHANAM VS. DOES, [SC: 148726 (Mich. Dec. 23, 2014)], the court had to analyze the facts and circumstances surrounding a defendant’s use of the sticking out tongue emoticon within a communication in a defamation case. Based on the hyperbole surrounding the emoticon, and the emoticon itself, the court found that the communication was a joke and negated the defamation claim in the defendant’s favor.
On the other hand, in 2019, in COMMONWEALTH VS. DANZEY, [Pa. Super. Ct. 2019], the Superior Court of Pennsylvania upheld the conviction of a defendant for stalking and harassment that was based in part on a social media post whose wording demonstrated the defendant’s state of mind, revealing his criminal intent, despite the words being accompanied by the common smiley face emoji.
EMOJI FORENSICS
Emojis are increasingly used in courtrooms due to their widespread use in digital communications. This has led to the need for a specialized field called "emoji forensics," reflecting societal norms and allowing law to adapt to technological advancements for judicial inquiry.
