Emojis and Legal Disputes

I must admit, I am an emoji neophyte.  Anything past the smiling, laughing, or thumbs up emoji baffles me.  I honestly have no idea what some of the emojis mean.  Now, it appears that emojis are causing quite a stir in the legal world.  Recently, emojis have become the source of contention in all kinds of lawsuits (ranging from business disputes to harassment to defamation).  For example, the meaning of an emoticon--apparently, this is slightly different than an emoticon.  Who knew?  ¯\_(ツ)_/¯  

For example, in a defamation lawsuit, the issue is what the emoticon, ":p" means.  It represents a face with its tongue sticking out. That case involves a comment on a message board that accused an official of corruption.  The poster inserted the emoticon at issue after his/her accusation.  According to the Appellate Court, the insertion of the emoticon negated the defamation claim because the emoticon denotes a joke or sarcasm.  Thus, according to the court, the defamatory comment cannot be taken seriously because it was a joke or a sarcastic statement.

In another case, a sexual harassment case, the question is the significance of a red-lipstick kiss mark emoji used by an employee to an employer in response to sexually explicit texts. Was this an acquiescence to the advances of the employer or just a polite reply in an attempt to distance herself from the employer?  According to the attorneys in the case, the testimony of the employee about what she meant to convey may not resolve the issue. 

These are only a couple examples as to how emojis and emoticons can confound us attorneys and judges. According to Eric Goldman, a Santa Clara University School of Law professor, emojis or emoticons "appeared" in 33 state and federal cases.  This number is undoubtedly going to keep increasing as people continue to increase their use of technology to communicate and the creators of such technology keep creating more and new emojis.