Emoji Law Year-in-Review for 2020
Some emoji law highlights from 2020:
* My caselaw tally shows 132 cases referencing emojis or emoticons in 2020, a 25% increase from 2019. This year, I noticed that emojis are showing up in more murder cases–10 in 2020, compared to about 20 murder cases total in all prior years.
* The standout emoji law opinion of 2020 is Burrows v. Houda, an Australian case that said the zipper-mouth emoji, by itself, could constitute a defamatory statement. The defendant will almost certainly win the case, but at significant expense.
* Oher noteworthy cases in 2020:
– emojis helped keep a teen out of jail (State v. DRC)
– a court recognized the possibility of cross-platform depiction diversity a/k/a fragmentation (In re RD)
– a fire emoji didn’t support an involuntary manslaughter prosecution (Johnson v. State)
* Pre-COVID, I cracked the mystery of the chipmunk emoji
* A few quick links that I haven’t previously posted:
– Lindemer v. Polk County & Polk County Soc. Servs., 2020 U.S. Dist. LEXIS 141609 (D. Minn. Aug. 7, 2020): “The colon followed by the backslash that Paulsrud included in her email is a common “emoticon” expressing annoyance or discomfort. See List of Emoticons, Wikipedia, available at https://en.wikipedia.org/wiki/List of emoticons (last visited August 6, 2020) (listing “:/” as an emoticon which expresses that an individual is skeptical, annoyed, undecided, uneasy, or hesitant).”
– ת”א 68098-01-17 רו.מ אינטרנשיונל גרופ בע”מ ואח’ נ’ ארנה סטאר גרופ בע”מ ואח’
An Israeli court opinion interpreted a WhatsApp smiley. Two parties were negotiating the size of a real estate brokerage fee. One party sent the message: “we need to close the percentages … [smiley]” (I used Google Translate, with all of its limitations). The court says the smiley did not indicate agreement over the brokerage fee amount. The text is pretty clear that the parties are still haggling, and the smiley didn’t flip or change the meaning of the text. It seems likely that the smiley was acting as discourse management, i.e., to soften the text while still asking for more money.
– Moshe Berliner, When a Picture is Not Worth a Thousand Words: Why Emojis Should Not Satisfy the Statute of Frauds’ Writing Requirement, 41 Cardozo L. Rev. 2161 (2020)
– Laurence Bich‑Carrière, Say it with [A Smiling Face with Smiling Eyes]: Judicial Use and Legal Challenges with Emoji Interpretation in Canada, 32 Int J Semiot Law 283 (2019)