We Live In Interesting Times: Emojis and the Law

From "Lawyers Faced With Emojis and Emoticons Are All ¯\_(ツ)_/¯"[1]:

Emojis—tiny pictures of facial expressions or objects used in text messages, emails and on social media—are no longer a laughing matter for the legal profession. Increasingly, they are bones of contention in lawsuits ranging from business disputes to harassment to defamation.

In one Michigan defamation dispute, the meaning of an emoticon, an emoji-like image created with text characters from a standard keyboard, was up for debate. A comment on an internet message board appeared to accuse a local official of corruption. The comment was followed by a “:P” emoticon.

The judges on the Michigan Court of Appeals concluded in 2014 that the emoticon “is used to represent a face with its tongue sticking out to denote a joke or sarcasm.” The court said the comment couldn’t be taken seriously or viewed as defamatory.

Puzzled lawyers are turning to seminars, informal meetings and academic papers to discern innuendo in seemingly innocuous pictures of martini glasses and prancing horses. Researchers at Deakin Law School near Melbourne, Australia, produced a 61-page study on the topic slated for publication in the April issue of an academic journal.

Emojis are commonly used in communications. Courts have even found that they may form the basis for contract formation:

The study also discussed a case in Israel that involved a couple looking for an apartment. They texted a landlord a series of emojis, including a smiley face, a comet, a champagne bottle, dancing yellow Playboy bunnies and a chipmunk. The landlord believed, based in part on the emojis, that the couple had agreed to rent the apartment. He took down the listing, then sued them when they stopped responding to his messages.

A judge found in favor of the landlord, reasoning the couple had negotiated in bad faith, and fined them a month’s rent as damages, according to the Deakin study.

This is curious. Israeli contract law, like American law, derives from English common law (though it underwent uniform codification to a greater extent than American contract law).  As Sam Brickley and I noted in Business Law Basics, under the Anglo-American tradition, creation of a contract, at a minimum, generally requires an offer by one party and acceptance by another.[2] This is usually done in the form of an offer and acceptance.  Courts call the manifestation of an agreement between the parties a “meeting of the minds,” and the test is an objective one. Generally, there has been a “meeting of the minds” if a court finds that a reasonable person in the position of each of the parties would have been led to believe by the actions or words of the other party that a contract had been created between them, and that each had the same understanding of its terms.

Assent to a common understanding of the contract’s goals is such a crucial element that courts have been known to override the express terms of a contract when those terms interfered with the “manifest objectives” to which all parties had agreed.An offer is a demonstration of one’s willingness to be bound by a contract, and must be such that a reasonable person would think that responding in a certain way (by accepting the offer or performing a requested act) will create a contract. Entering into preliminary negotiations (e.g., “I’d like for you to cut my lawn, and I’d be willing to pay for the service”) does not create an offer. Contract formation requires that the parties give a clear indication of their agreement, or assent, to the same bargain.[3]

However, the article notes:

Jon Pfeiffer, an entertainment lawyer in Santa Monica, Calif., is representing a producer in a dispute with her former business partner, a middle-aged man, who allegedly sent sexually explicit texts to a potential female employee. In one text, the potential employee responded with an emoji that depicts a red-lipstick kiss mark. There is now debate, Mr. Pfeiffer says, over whether that meant she approved of his advances or was politely trying to keep her distance.

Lawyers in the case intend to ask the potential employee during a deposition what she wanted to convey, Mr. Pfeiffer says, who cautions that her answer might not resolve the debate.
“It’s like the crying smiling face,” Mr. Pfeiffer says. “Is that laughing so hard that you’re crying, or is it something else?”

Debra Katz, an employment lawyer in Washington, D.C., says she was stumped by a combination of emojis that included horses and one that “looked like a muffin” in text messages associated with a harassment case. She solicited opinions from her colleagues in the office about what it might mean. Her client told her it meant “stud muffin.” She says her client viewed the emojis as an extension of the alleged unwelcome advances at issue in the dispute.

On a personal note, I had the experience of using an emoji that I believed was a shrug. I was informed that it was supposed to represent an embrace. If the same emoji can represent different things to different people, how can one ascribe a meeting of the minds? Will court’s adopt an objective definition for emojis? Will the interpretation of emojis be left to individual jurors and finders of fact, who themselves may differ in their interpretations? Or will ex post facto representations by the parties about what they intended govern? As emojis become more widely used (to the detriment, some would argue, of literate civilization), these issues will need to be addressed in a comprehensive way.

Hat tip: Chris Debatt

[1] Wall Street Journal, Jan. 29, 2018. I am reliably informed by the young people in my office that the abstract figure in the headline represents a person shrugging.
[2] Carlill v. Carbolic Smoke Ball Co., 1 Q.B. 256 (1893). 
[3] Spaulding v. Morse, 76 N.E.2d (Mass. 1947).