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Smiley Face Now, Cry Later: How Emojis Can Saddle You With Legal Woes and What You Can Do About It

“Emojis mean different things to different people and therefore have the potential to create huge misunderstandings.”

What could be bad about a harmless smiley face? More than you might think.

Smiley faces, as well as other types of emojis, have become a fact of life, a fun and easy way to convey thoughts and feelings. But even as emojis infiltrate communications, they’re also giving rise to a growing pile of legal problems.

In fact, from 2004 to 2018 there were 171 U.S. court opinions referencing emojis and their brethren, emoticons, according to emoji law scholar Eric Goldman, a professor at Santa Clara University School of Law. Notably, cases involving emojis have spiked in recent years with 33 emoji-related court decisions in 2017 and 53 in 2018.

Emojis are popping up in a wide variety of matters including contract disputes, sexual harassment and discrimination cases, and murder cases. The types of emojis most often cited in legal disputes are smiley faces, winky faces, sad faces, and guns.

Why is this now ubiquitous mode of communication a potential legal trap and what can companies do to reduce their exposure?

V&E commercial and business litigation partner Jason Levine will be delivering a CLE seminar on this topic on June 27. Levine recently sat down to discuss the emerging legal issues emojis present for businesses. Here’s what he had to say.

What is it about emojis that creates potential legal problems?

We’ve all heard the phrase, “a picture is worth a thousand words.” In a way, that encapsulates the issue with emojis.

Emojis mean different things to different people and therefore have the potential to create huge misunderstandings. This is a serious problem because there are thousands of emojis and they are common in business communications — which can quickly become miscommunications.

Let’s start with the fact that different technology platforms depict emojis differently. That means that an emoji transmitted via an iPhone or an Outlook email may look quite different when received on an Android device.

The same is true for different versions of the same operating system. This can easily result in the sender on one platform thinking an emoji clearly means one thing, when the recipient on a different platform sees something very different and possibly conveying a different meaning. The problem becomes even worse when the sender and recipient don’t know the emojis look different to each of them.

On top of that, there is no standard dictionary definition for any given emoji. Take the “folded hands” emoji. It can symbolize please, thank you, prayer, and a high five — all very different meanings, with different implications. Even something as obvious as a smiley face could have different meanings depending upon who is looking at it, and given the context of the overall message or dialogue.

What does the folded hands emoji mean to you?
a. Praying for you
b. High five
c. Please
d. Thank you
To learn what others think, tune into V&E’s emojis seminar.

What are some of the legal pitfalls of using emojis in business communications?

As emojis are increasingly used in business communications, they are creating a surprising degree of liability exposure. In some cases, the use of emojis can lead to accidental contracts and subsequent litigation.

A notable 2017 court ruling in Israel underscores how two parties discussing a proposed business arrangement can have different interpretations of emojis. The case, Dahan v. Shacaroff, involved text messages between a landlord and a prospective tenant concerning the rental of an apartment. The tenant sent a message to the landlord that included a series of emojis including a smiling face, dancing women, a champagne bottle, a peace sign, and a chipmunk.

The landlord took this to mean the tenant was going to rent the property and removed the listing for the property. But the tenant did not end up renting the apartment, and the landlord sued for damages. An important aspect of the case involved the court’s analysis of the emojis, and what they seemed to imply about the tenant’s state of mind and intentions.

What do you think was the outcome of the case?
a. Contract formed, damages awarded
b. No contract, no damages
c. Contract formed, but no damages
d. No contract, but reliance damages awarded
To learn the answer, tune into V&E’s emojis seminar.

What are some of the other potential legal consequences companies face when using emojis in communications?

Emojis found in emails and other business communications are increasingly being cited as evidence in a wide range of cases including sexual harassment claims, contract disputes and even employment litigation.

For instance, in Apatoff v. Munich Re America Services Inc., smiley face emoticons would become important evidence for a plaintiff who claimed she was wrongfully dismissed as retaliation for taking FMLA leave.

In discussing the plaintiff’s dismissal, managers at the company sent out internal emails with smiley faces. As a result, the court concluded that the managers were happy to be terminating the plaintiff because her FMLA leave was inconvenient, which contradicted their testimony regarding why she was fired.

In the end, the court denied the company’s motion for summary judgment against plaintiff’s claim, and the smiley face emojis were a key piece of evidence.

So what can companies do to avoid falling victim to emoji jeopardy?

The most straightforward thing that companies can do is institute policies that prohibit the use of emojis in business communications both internally and externally on company systems. If employees will abide by these policies, and if these policies are enforced, that should greatly cut down on the problem.

Companies can also consider adding a disclaimer at the bottom of emails or other messaging systems where emojis might appear. The disclaimer language could say something like, “Emojis and other symbols can form no part of any offer, acceptance, or agreement.” This is not foolproof, but again, it should help cut down on the likelihood that a court would find a binding contract based in part on emojis.

Workplaces already have many codes of conduct regarding what employees can and cannot do, so it’s not that much of a stretch to say that the use of emojis is out of bounds.

Some employees might feel constrained. But in the end, avoiding smiley faces and other emojis today could mean fewer sad faces tomorrow.