Many text conversations I have with colleagues at our university, the media and even the business community are concluded with emojis. The praying hands, for example, are commonly used to say thank you, while the single thumbs-up substitutes for agreeing to something.
What exactly you are agreeing to, however, may not be the same in the mind of the emoji sender and the recipient.
For example, not so long ago a kind member of the public asked me to stop using the white dove emoji in my messages. Though it is a universal symbol of peace, this X (formerly known as Twitter) user explained that he understood the dove to communicate death. Every time I used it, he lamented, he would get morbid vibes.
Thank goodness he was not a judge (though I cannot tell for sure) because in the case of disagreement, a court may make the final determination on meaning.
Who would have guessed that emojis — used particularly by millennials to simplify informal communication — would eventually be taken so seriously that courts would make findings based on them? In such cases, judges weigh in to decide whose meaning they will uphold, with serious implications for justice.
In an article published online by Australia’s Law Society Journal in May 2018, Kate Allman reported that there had already been 19 court cases in that country where emojis were presented and accepted as evidence.
In a widely reported US case, a farmer was found guilty of reneging on a contract based on a judge finding that his thumb emoji sealed a deal to supply produce to a complainant. The farmer’s version was that he simply sent the single emoji to confirm he had received a WhatsApp text message. The judge went with the complainant’s version, which was that the thumb emoji was agreeing with the content of the text, which was a proposal to supply him with produce.
You will agree with me that judges are not exactly a group likely to be deeply familiar with emojis and their meanings. Yet pretty soon, if not already, South African judges, magistrates and even public protectors may decide who gets the benefit of their interpretation of emojis.
Allman refers to a report by two Australian professors, Elizabeth Kirley and Marilyn McMahon, who researched the growing legal questions about emojis.
She quotes Kirley as stating: “People are using emojis to communicate via text, e-mail, and messaging apps like WhatsApp ... These digital characters have come up as evidence for cases surrounding criminal threats, revenge porn, even terrorism. Judges and juries are scratching their heads trying to deal with them.”
What is emerging is that judges are not letting the informal or even playful nature of emojis negate their validity as evidence of the sender’s intentions. In the process, criminality has been ascribed to sending a gun emoji. Sexual harassment liability has been determined on the basis of sexually suggestive emojis. In one case an emoji was considered a will, and in the case mentioned earlier, a contract was determined as concluded on the basis of an emoji.
If judges were to ask what a reasonable person would read into an emoji, would they consider the diversity of reasonable people?
Justice served?
What is clear is that, should your emoji be the subject of a court dispute, your intentions as sender are not the final word. That will be what a judge or other authority determines.
But how do judges decide what an emoji means when parties disagree? Is it a subjective test, or the standard of a reasonable person? If they were to ask what a reasonable person would read into an emoji, would they consider the diversity of reasonable people?
These determinations of meaning by courts may take us back to questions of justice in our troubled past regarding the standard of a reasonable person. This came to the fore in the 1933 case known as R v Mbombela. In Mbombela, cultural differences around the belief in the existence of a tokoloshe between an accused, unsophisticated black man, and a sophisticated judge of European descent were raised.
We may argue all we want about the justness of judges assigning meaning to our emojis ex post facto. But chances are that this will pretty soon happen on our own shores.
Are you, as I am, an avid user of emojis? If so, what will you do to guardrail your communications to prevent your emojis being misinterpreted, with potentially perilous consequences?
* Prof Thuli Madonsela is the Law Trust Research Chair in Social Justice at Stellenbosch University and Thuma Foundation founder
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