Emojis & eDiscovery: What Lawyers Need to Know
Do you know your from your ? How would you react if someone sent to you? What does even mean?
The Origins of the Emoji
Twelve thousand years ago, our ancestors began carving images on rocks to tell a story or record an event. The Sumerians, Egyptians, and Indigenous Australians, the Aztecs, Native Americans, and Chinese: All around the world, civilizations arose and each developed their own pictographic ways of depicting their lives and important topics. Over time these pictograms (pictures resembling the thing they represent) and ideograms (drawings to represent an abstract concept), merged and developed into the written languages we’re familiar with today.
In the late 1990s, we came full circle as a junior engineer at a Japanese mobile phone manufacturer designed a series of pictograms to be used for mobile messaging: the emoji was born.
What is an Emoji?
For those not in the know, an emoji is a small image commonly used in messaging or online, either on its own or in conjunction with others, to express the author’s emotions or add context to their message. This is different from an emoticon, which uses keyboard characters to draw the picture, although the terms are often used interchangeably. There are currently more than 3,000 emojis recognized by Unicode, the organization that administers them.
Today, emojis are in common use in all forms of communication – from personal text messages between friends and family, to marketing emails from consumer brands and communication between colleagues, customers, and clients in the workplace. Emoji use is now so common in the workplace that Skype, Microsoft Teams, Slack, and many other workplace collaboration tools have emoji buttons built right in.
Emojis and the Law
And as with any new form of communication, savvy corporate lawyers and law firm attorneys must understand how to best evaluate this new data type for inclusion in discovery for litigation, regulatory requests, or internal investigations. Lawyers must understand the nuances of collecting, processing, and reviewing data that includes emojis – just like they must now understand plain-text emails and other more established electronic forms of communication.
Emojis and Electronic Discovery
Today, building a case based on the review of emails and other electronic communications has become commonplace, and most review teams have gotten comfortable with the process. Newer sources of information including text messages, instant messaging and even social media feeds are now starting to emerge on the eDiscovery scene, and these come with many new challenges. Collection, processing and review often require new tools and new workflows, but many vendors have some form of solution for these. The bigger challenge is the language and characters used.
Searching and analytics tools generally rely on the textual content of a communication, so adapting to “text-speak” requires a complete change of mindset. This is difficult, but not impossible. You need to understand how the individuals in question talk, but there are some common conventions, and most review platforms will include some form of topic extraction in their analytics suite to help you figure it out.
Emojis, on the other hand, are a whole other minefield.
Emojis on the Rise
Emojis are highly used – 5 billion emojis are sent daily on Facebook Messenger, and as many as 84 percent of Android users use them – both to clarify meaning around text (eg often denotes sarcasm or jokes), or increasingly instead of any textual content. In the latter case, interpretation becomes crucial. Accepted meanings of many emojis have no relation to what they literally depict, with many seemingly innocent images being misappropriated to indicate something illegal or sexual. (I’ll leave you to look up the alternative meanings of , , and , at your discretion, but suffice it to say only 7 percent of users in a study used peach to refer to the fruit or color.)
While emoji use would traditionally have been limited to personal communications, they are slowly creeping into the accepted lexicon: Oxford Dictionaries even chose an emoji as the Word of the Year 2015. This has inevitably led to an increase in the use of emojis in more professional or business-relation communications, and ultimately in their appearance in documents relied on in court. An analysis of court cases in the US referencing the words “emoji” or “emoticon” shows an exponential increase over the last few years.
Emoji Case Law
In May 2017, an Israeli couple were fined the equivalent of approximately £1,700 for “acting in bad faith” due to their use of emojis. In negotiating the possible rental of an apartment, they sent the landlord an emoji-laden text message including , , and . Shortly after, they began ignoring the landlord’s messages, and later claimed to have had reservations about the apartment at the time. While the judge pointed out the emojis “did not constitute a binding contract between the parties,” he also ruled that the symbols were “misleading” and “conveyed great optimism.”
More recently in the US, a man accused of being a pimp sent a message to a woman which read “Teamwork make the dream work ”. He claimed to be flirting with her, while prosecutors said it was an indication of a working relationship between them. A sex trafficking expert was called in, and stated that the high heels and money bag translated to “wear your high heels to come make some money,” while the crown signified that “the pimp is king.”
The Legal Emoji Translation Challenge
The interpretation, unfortunately, varies widely depending on the context and also on the individuals in question. It’s often described as a dialect, but it can be geographical, age-related, based on social circles, or a combination. That leaves it very much open to lawyers to argue the implied intent when using such messages in court.
Does mean anger and frustration? Smoking? The official definition is “triumph”. Many people use to denote sarcasm, but others consider it to be jumping up and down in excitement. And does anyone know what means? (FYI it means “OK”).
A further complication is how the actual visualisation of the emojis vary depending on the platform. If you use emojis on your phone, you may have noticed that in most apps you have the choice of the app emojis or the phone/keyboard emojis. You may not be aware that different phones (or even different versions of the same phone system) sometimes display the same emojis differently. A commonly used example is “Beaming Face with Smiling Eyes”:
While these all look fairly similar, more crucially this displayed quite differently on older versions of Apple’s iOS, and thus was often interpreted more negatively:
Older phones often don’t support the latest emojis, just displaying an empty box instead. Some of the newer emojis are also defined as a combination of existing emojis, if the latest pictogram isn’t available, e.g. newer female versions of emojis will sometimes display as the original male image with a female symbol beside it; when different skin tones aren’t supported by the recipient, their phone may display the standard yellow-skinned icon with a coloured box beside it to indicate the skin tone selected by the sender. In a study, 20 percent of Twitter users stated they would have edited or not sent their tweet if they had realised how differently it might appear to their followers. So when interpreting emojis, should we consider both what the author wrote (speaks to intent) and what the recipient saw (speaks to interpretation)?
Just when you thought you’d come to grips with all the complications emojis might bring to your document review, there’s one final twist: Can your processing and review platforms support all of these new images? It’s all for nothing if the emojis get lost along the way, or you can’t search or view them. The level of support available will vary, though mostly is quite limited, so it’s something you ought to consider and speak to your vendor about at the outset of any discovery matter that may involve emojis.