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The Increasing Importance of Emojis to Your Case

Written By

Sean Goldstein

What is an Emoji? If you were to ask this question, most of society would give you a puzzled look and think you were attempting a bad joke. Just in case you are truly not aware of what an Emoji is, here is the definition according to Merriam Webster: “any of various small images, symbols, or icons used in text fields in electronic communication (I.e. text messages, SMS, e-mail, social media, Slack, Microsoft Teams, etc.) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words”. Now that we are all on the same page about what an Emoji is, let’s dive deeper into their history, their role in the workplace, and how the impact they can have on your legal matter. 

History of Emojis:

If you think back through our history, humans have always communicated through images. Whether it be cave drawings or hieroglyphics, the adage of “A picture is worth a thousand words” has always been true in some form or fashion. In the early 1990s chatrooms began to see images such as ; ) and : ( amongst other emoticons to communicate. Next came Emojis, created by Shigetaka Kurita, which made their first appearance via Japanese mobile phones in the late 1990s. There were only 167 original emojis, just think how many there are today. To give some perspective, the first iPhone was not released until 2007. In 2010 Unicode officially adopted emoji and as a result, hundreds more were added for our use. In 2015 they were the Oxford dictionary’s “Word of the Year”. Each year since then, we wait to see what emoji is set to come out next. 

Are Emojis Appropriate in the Workplace?:

Do you use Emojis in the workplace? Are Emojis workplace appropriate? Well the answer to the second question is, it really depends who you ask. Some organizations have adopted policies where no Emojis are allowed, while others make no mention of them. There really is no right or wrong answer, as long as they are being used in an appropriate manner. With messaging platforms such as Slack, Microsoft Teams, WhatsApp, GroupMe, Jabber, and others becoming ever more present as workplace forms of communications, we have seen the uptick in usage of Emojis. It is important to keep in mind that communication through message already has the potential to be misinterpreted due to the lack of ability for the receiving party to see your social ques. It must also be taken into account that Emojis do render differently dependent on the platform being used. Take the devil emoji for example, on Apple devices it appears purple and somewhat harmless, while on Microsoft devices it shows as red and very clearly has a menacing appearance. Using Emojis can and has led to the exacerbation of this issue. 

The Impact of Emojis on Your Legal Case: 

While it may sound ridiculous, over the last several years we have seen an uptick in the amount of litigation which has been impacted by Emojis. Review platforms such at Relativity and Cloudnine and digital forensics tool providers such as BlackBag and Cellebrite are taking notice of this trend as well, making sure to include Emoji-focused solutions. As these new forms of communication continue to play a key role in our everyday lives and evolve, it is important we have the tools to assist with the legal process when necessary.

One very well publicized case involved an Israeli judge who ruled that a string of Emojis served as evidence of intent that two potential renters planned to enter into an agreement with a landlord. This is the message and string of Emojis, which was deemed to have confirmed the agreement, “Good morning 😊 interested in the house πŸ’ƒπŸΌ  πŸ‘― ✌ 🎐 🐿 🍾  just need to discuss the details … When's a good time for you?” One of the resulting actions, was that the landlord removed their ad for this space. While Emojis of a Women doing a Salsa dance, two women dancing, a peace sign, a squirrel, and champagne bottle might seem innocuous enough, here was the Judges interpretation:

"…the sent symbols support the conclusion that the defendants acted in bad faith. Indeed, this negotiation’s parties’ ways of expression may take on different forms, and today, in modern times, the use of the “emoji” icons may also have a meaning that indicates the good faith of the side to the negotiations. The [emoji laden] text message sent by Defendant 2 on June 5, 2016, was accompanied by quite a few symbols, as mentioned. These 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, this message naturally led to the Plaintiff’s great reliance on the defendants’ desire to rent his apartment."
– Mashable

What should we do?:

At the end of the day, it seems nearly impossible to remove Emojis altogether from our everyday life and honestly why would we want to? This being said, legal professionals must be aware that Emojis will continue to play a role and they must be informed on how to navigate them. This is where you need a trusted partner, such as Capsicum. Our team of trusted technologists and ex-law enforcement individuals use a combination of battle tested solutions and services to best meet your digital forensic, e-Discovery, and cybersecurity needs.  

About Capsicum:

Capsicum was founded in 2000 within the law firm of Pepper Hamilton, LLP. Charged with providing technology consulting support to their clients, we soon realized that the need to understand, collect, and forensically analyze digital data went far beyond what we were handling: We began our journey as general technologists, but quickly became specialists in digital forensics. Our areas of expertise soon evolved and expanded into forensic investigations, cybersecurity, discovery, electronic and paper recovery, security, regulatory compliance, and incident response retainers. In 2002, Capsicum became the independent consulting company that focuses on these core services. Employing high-caliber experts and a unique understanding of data, technology, and the law, we support organizations that need technological proficiency to run their companies and when they come face-to-face with difficult tech, legal, and regulatory situations. Capsicum is headquartered in Philadelphia, PA with offices in New York, Florida, Texas, and California.