Emojis and the Law
Monday, May 8, 2017
Posted by: Mary Mack
Eric Goldman, Professor at Santa Clara University School of Law, Co-Director of the High Tech Law Institute and Supervisor of the Privacy Law Certificate, published a draft of his 57-page treatment of Emojis and the Law, including a short discussion of emojis as evidence.
Tracy Shorn of Blank Rome reports “There are two billion smart phone users worldwide, and over six billion emojis are sent each day on mobile messaging apps, according to Swyft Media.”
Goldman’s article is a comprehensive overview of the use of emojis and the difficulty of finding case law on the subject. Emojis are described differently, sometimes called emoticons.
Goldman reports “Unicode has incorporated emojis into its standards. Each Unicode-defined emoji has a unique numerical value that will be the same across all Unicode-compliant platforms. As of January 1, 2017, roughly 2,000 emojis have Unicode definitions.” Unicode does not demand uniformity in how the emoji is depicted, giving instead, a black and white glyph as inspiration.
Noting that most case law search engines do not support searching for the special characters that underlie the emoji, Goldman collected cases as best as he could for his analysis.
Goldman goes deep into the user experience of emojis. For example, he notes, “In the case of Unicode-defined emojis, where the sender and recipient may have seen different versions, judges should display both versions The platform and operating system can also cause differences in the visual appearance of the “same” emoji. (Goldman, page 25-26)
The first compatibility issue relates to differences in emoji implementations in different software versions of the same platform. Platforms iterate their emoji implementations frequently. For example, the “Grinning Face With Smiling Eyes” emoji121 has gone through the following iterations on the Apple, Google and Microsoft platforms: Apple Google Microsoft
(these figures show the oldest version at the bottom and newer versions above it)
For Apple, the bottom depicts iOS 6.0 and the top depicts iOS 10.0. The mouth shape and teeth are strikingly different. For Google, the bottom represents Android 4.3, the middle Android 4.4 and the top Android 7.0. The differences between 4.4 and 7.0 are subtle, but the outline shape, mouth shape, teeth, and relative position of eyes to mouth all changed. The differences between 4.3 and 4.4 are dramatic: different color, outline shape, mouth and teeth, and antennae.
For Microsoft, the bottom is Windows 8.0, the middle is Windows 8.1, and the top is Windows 10 Anniversary Update. The addition of color is the main change from 8.0 to 8.1, but the changes from 8.1 to 10 were significant, including the mouth shape, the teeth, the eyes, and the thick outline border. If the sender and recipient are on the same platform and using the same version of the operating system (i.e., both sender and recipient are on iOS 10.0), then they should see the same versions of the platform’s emoji implementation.
Emoji’s can be used to convey assent, dissent, state of mind, excitement and other communications. The magazine, Boys Life, demonstrated the different opinions about how to represent the Boy Scout Law. The emoji of a dog was the overwhelming favorite to represent the word “loyal.” The other elements elicited more diverse representations.
Goldman looked at how emojis are represented in court documents and opinions, sometimes with an emoji omitted, or a description of the emoji. During trial, emojis are described verbally, or possibly displayed with other information redacted.
The paper is a draft, and the author is updating based on input received. Highly recommended.
Goldman, Eric, Surveying the Law of Emojis (May 1, 2017). Available at SSRN