The dark side of emoji
THE ubiquitous emoji, those seemingly harmless little icons used in digital communications around the world, are proving a minefield for law reform, according to new research from Deakin Law School.
In a paper to be published in the Tennessee Law Review later this year, Deakin University researchers Dr Elizabeth Kirley and Associate Professor Marilyn McMahon examine whether society is prepared to expand protections to casual, unmediated emoji speech and if we should be more mindful of potential liabilities that can arise from their use.
In an Australian case last year, a smiley face emoji at the end of a will contained in a text message could have led to the will being invalidated in a contested case in the Queensland Supreme Court.
While it was argued that the smiley face undermined the seriousness of the will, it was ultimately held to be valid, leaving some in legal circles calling for clarification on the legal status of emoji.
“Emoji are widely perceived as a whimsical, humorous or affectionate adjunct to online communications,” said Dr Kirley, senior lecturer and chair of law and technology at Deakin’s Faculty of Business and Law.
“However, we found the icons are challenging lawyers, judges and lawmakers around the world, with their use being recognised in a legal context not as a joke or ornament but as a legitimate form of literacy.
“With cases coming before the courts where the intended meaning of emoji in interpersonal messages is unclear, with some resulting in jail time for the offenders, it’s clear that the legal status of these images needs to be determined,” she said.
Through a review of selected cases from American and European jurisdictions, Dr Kirley and Associate Prof McMahon examined emoji in criminal, tort and contract law contexts.
They found emoji can inject emotion, creativity and ambiguity — or ‘humanity’ — into computer-mediated communications. However, that ambiguity comes at a cost when messages constitute evidence in legal cases.
“These communications can challenge current doctrinal and procedural requirements of our legal systems, particularly as they relate to establishing guilt or fault through matters such as intent, foreseeability and consensus. When, for example, do threats made with gun and bomb emoji by teenagers genuinely constitute harassment or even terrorism?” Dr Kirley said.
The pair identified four interpretative challenges posed by emoji for the judiciary or other conflictresolution specialists, characterising them as technical, contextual, graphic, and personal.
“Despite the best intentions of developers and the contributions of machine intelligence, many emoji remain difficult to interpret,” Prof McMahon said
“Technical issues can alter perception when an emoji is viewed on different platforms, for example, a heart-shaped emoji sent from your phone might appear as a series of squares on Facebook.
“Context is also critical in translating a sender’s intentions. Ethnic, gender and other ‘diversity-related’ cues in the selection of emoji, their sequence in relation to other images, the number of repetitions of each image, and the nature of any accompanying text or acronyms colour the meaning of messages as perceived by others.”
Prof McMahon said that despite interpretation difficulties, increasing emoji, inclusion in online messaging spoke to a social need to expand meaning and emotions in online conversations.
“That objective in turn has created a need for a legal response to digital speech that might confuse, threaten, defame, or otherwise offend its target,” she said.