By Vinny Liu

More than ever before, people communicate not just through written words but through pictures. The rise of picture-based apps like Instagram and Pinterest have increased our dependence on pictures as a tool for communication. But it wasn’t always this way.

Prior to 1982, texting was simply that – communicating via actual words. Then, texters began shortening phrases, using “gtg” or “lol” to communicate more efficiently. But on September 19, 1982, Computer Science Professor Scott Fahlman sent the following string of text to create the world’s first emoji:

“:)”

And a star was born (err-a smiley face).

Since their inception, emojis (or emoticons) have stolen the show in communication. To date, there are more than 3,600 emojis in existence, with nearly 7 million emojis sent every minute. In fact, they even have an entire day dedicated to them. (It’s July 17, if you’re calendaring.)

Experts state that the usage of emojis isn’t necessarily on the rise, rather it’s the platforms that allow emojis created the trend. For example, collaboration tools like Slack and Microsoft Teams team with emojis; Slack reports that 26 million custom emojis have been created since the platform began allowing emojis.

In any event, as emojis’ prevalence climbs, so does their court involvement. In 2020 there were 132 cases referencing emojis or emoticons, up 25 percent from 2019, with the most common areas of law affected being sexual harassment and assault cases, murders, and employment/discrimination claims.

Perhaps ironically, although Professor Fahlman proposed the smiley’s usage to clarify posts meant to be humorous, their advent has created confusion and uncertainty in the legal community. Does a thumbs up emoji constitute approval of a contract? Does a skull and crossbones emoji indicate an intent to harm someone? Can these tiny pictures really change the meaning and intent of a communication?

In this article, we’ll explore the emojis’ tangled legal history, their impact on eDiscovery, and best practices for choosing an emojis-savvy eDiscovery provider.

Emojis Go to Court

Imagine the following text was sent between co-workers in an age discrimination case: “Did you hear John was fired? Finally!”

Now add some simple emojis: “Did you hear John was fired? Finally!” 👨‍🦽💨  A cringeworthy difference.

The majority of cases in this space center around just that: What do the emojis at issue mean? Here are a few ways courts have interpreted their use:

• Douglas v. Alfasigma USA, Inc.: Court concluded that three text messages including a black Santa Claus emoji sent from a white employee to two black female employees was “boorish” behavior, no reasonable jury could conclude that the conduct amounted to a hostile work environment.
• Friel v. Dapper Labs: Court found that the use of a rocket ship, stock chart, and money bag emojis used in the defendants’ tweets implied a financial return on investment.
• In re Bed Bath & Beyond Corporation Securities Litigation: Court concluded that former investor Ryan Cohen could be sued by investors for fraudulent misrepresentation due to a tweet he posted that contained a smiling moon emoji. Investors argued that the tweet was interpreted as a signal that Bed Bath & Beyond shares were “headed to the moon.” Though the interpretation may seem like a reach, the retailer’s shares skyrocketed after that. Two days later, Cohen sold all his shares and the stock plummeted, with the retailer ultimately filing for bankruptcy eight months later.
• South West Terminal Ltd. V. Achter Land & Cattle: Court found that a thumbs up emoji was legally binding as a signature in a contract case.

But not everyone feels that emojis can be clearly interpreted. Those who oppose allowing emojis into evidence in these cases argue that emojis are inherently ambiguous for several reasons.

First, although some emojis may be generally understood to mean certain things (sad face, etc.), it’s not certain that a panel of twelve members of your peers would see eye-to-eye on that meaning. Cultural differences among people groups may play a factor in emojis’ interpretation. For example, in Western culture, a “thumbs up” may signify approval, but in Greece or the Middle East, such a gesture may actually be offensive.

Second, emojis renderings change depending on which operating system is used, creating different emojis that may yield different interpretations.

For example, in a 2016 study form the University of Minnesota, participants had mixed reactions to U+1F601 (“grinning face with smiling eyes”), depending on what operating system they used:

• Google rendering:
• Apple rendering:

Google users interpreted the emoji as “blissfully happy,” while Apple users said it looked like it was “ready to fight.”

Another issue is that emoji renderings might change over time, leading to inconsistent usage in documents productions that span decades. For example, major companies like Google, Twitter and Apple have recognized that their initial emoji offerings may no longer be appropriate for today’s culture. In the past five years, each has revised their renderings of the “pistol” emoji to look more like a water gun, following the increase in school shootings and political pressure surrounding gun control:

To be sure, analysis of an emoji’s meaning seems to be forcing its way into courtrooms; however, the case law development in this area is slow, in part because the technology hasn’t caught up. For example, judges don’t know how to display emojis within their opinions (and even if they did, major research providers like Westlaw and Lexis don’t have search options that include emojis). Attorneys are left to search by keywords such as “smiley face,” when, as we’ve learned, this phrase is unlikely to return all relevant information.

Emojis Crash eDiscovery

Despite the rise in the use of emojis over the last 40 years and their scattered appearance in litigation, the eDiscovery space is just now beginning to see the unique challenges these pictographs bring. With no set protocols to guide eDiscovery vendors, data collection and presentation can be frustrating.

Here are some issues with emojis that we’re seeing:

• Where do the emojis live? As noted previously, knowing what data you have and where it’s housed is essential. The same is true for emojis. Do your employees text or use communication tools like WhatsApp or Slack? Do your employees have Android devices, iOS devices, or both? If you don’t know whether your organization is heavy on emoji usage – and where employees use them – you won’t know how to pull that data during an investigation or litigation case. As demonstrated above, failure to extract emojis could result in an inaccurate interpretation of text.
• How do we find them? If you don’t know how emojis work, you’ll likely be frustrated when trying to find them in your data. Although users ultimately see a picture when we select an emoji, each emoji is actually generated by its own text equivalent. So, in theory, you should be able to run a search for the applicable text code and find all of the emojis that use that code.
• Which operating systems? Since different types of operating systems have their own emoji libraries, an iOS “crazy” emoji might look very different than its Android emoji equivalent. Plus, these emojis may have the same, similar, or entirely different text codes, making comprehensive searching even more difficult.
• Does the eDiscovery system even recognize emojis? Unfortunately, some eDiscovery providers don’t even render emoji data. In these circumstances, knowing that a production should include emoji data is imperative to ensuring that you have a complete data set.

Emojis-Savvy eDiscovery

Although workflows for searching and presenting emojis are still in development, it’s still important to do some due diligence with your eDiscovery provider. Here are some questions to ask:

• Do your tools allow you to extract emoji data?
• Are emojis searchable?
• Can emojis be accurately displayed?
• Do you understand which operating systems employees use and that different systems use different emoji libraries?

Although it might seem silly to pay attention to these symbols, emojis can really affect litigation and investigations. And while it’s true that emoji data poses unique challenges in the eDiscovery space, vendors like Level Legal constantly monitor and improve processes to develop protocols to account for this data.

The most important advice we have for managing emoji data in your organization is this: Don’t ignore it. If you know your employees use emojis (and they probably do), have a conversation with your eDiscovery vendor about the best way to pull that data for production.

Need help with emojis in eDiscovery? Reach out to Level Legal.

Vinny Liu is a senior project manager at Level Legal. With an eDiscovery track record spanning more than two decades, he delivers delight for law firms and corporations. His previous blog post is “Ground Rules: Mastering Data With an ESI Protocol.”