A Roundup of German Caselaw Regarding Emojis and Emoticons (Guest Blog Post)
by guest blogger Dr. Matthias Pendl, Max Planck Institute for Comparative and International Private Law
Emoji are a worldwide phenomenon in modern communication, and so unsurprisingly emoji cases are popping up in Germany as well. Although the number of published cases reporting factual information about emoji was in the single digits until just recently, and German courts have yet to develop a standard method of dealing with them, the topic is growing rapidly even though courts have some trepidation about it.
Hesitation to display emoji in opinions
Like courts around the globe, German courts are reluctant to depict emoji characters. Most decisions do not actually show the emoji they report on. Instead, they simply write the word “emoji,” often in brackets. In some cases, this makes it completely impossible to know which emoji were actually used, such that the reader cannot reflect on their exact meaning. Some courts provide their own characterizations, such as “[laughing emoji],” “[sad emoji],” “[skull emoji],” and “middle finger emoji.” Only the State Labor Court of Baden-Württemberg depicted the relevant emoji in its ruling of 22 June 2016 (involving the monkey/bear face emoji depicted below); but it referred to them as “emoticons.” Also, as discussed below, the 3rd Criminal Division of the Federal Supreme Court reproduced the emoticon “;)” – though it called it an emoji.
Different levels of emoji-analysis
Although courts address emoji use among the facts of the case, only some of the identified decisions deal with the content of the communication symbols.
Emoji as marginal notes
In 2016, the Federal Patent Court rejected a requested trademark registration of the term “EMOJIS” for chocolate because this expression was already an established designation for figurative symbols in electronic communication (in the German language, the plural of emoji is “Emojis”). The Regional Court of Cologne supplemented its criminal judgment of 30 January 2017 on gang theft with an en passant explanation of the emoji “with raised index finger” (probably ☝). According to the court, the raised index finger represented “the sign of tauhid (monotheism: ‘god is one’),” which is why the court classified the electronic gesture as a sign of victory common among jihadists. And the Labor Court of Stuttgart merely offered a dictum that “reverse laughing smileys” (probably 🙃) regularly indicated an ambiguous statement, so they could have no exculpatory effect with regard to xenophobic WhatsApp-messages sent to an immigrant colleague and were no defense against a rightful termination.
Emoji as contributing factors
At least as a contributing factor, the absence of emoji use led the Administrative Court of Schleswig to its assessment that the marriage of an Albanian man to a German woman was merely for the purpose of obtaining a residence permit. The judgement referenced text messages by the wife, which were consistently affectionate and contained “expressions such as ‘honey’ and so-called emoji, that is, small colorful pictures, in the form of hearts and kisses”; the husband’s messages, on the other hand, had been taciturn, slow in the making, and devoid of pet names or emoji. In addition to the (many) other facts of the case, these observations spoke to an imbalance in the marriage and a lack of interest on the husband’s part.
Pondering and laughing “smileys” used in comments to Facebook postings that linked to Holocaust-denying articles and pictures were the subject of a decision by the Higher Regional Court of Celle. With regard to a conviction for incitement to ethnic violence (§ 130 German Criminal Code), the emoji at issue were treated as expressions of personal opinion and not as incorrect statements of fact. In his use of the emoji and other comments, the user had made his own assessments of the images and articles and possibly adopted them as his own. Referring to Wikipedia, the court held that “smileys” are a widespread form of communication nowadays that increasingly replace language and reflect or convey certain emotions.
Emoji as dispositive
Emoji were also in the limelight in a case before the State Labor Court of Baden-Württemberg. The case concerned an employment contract summarily terminated on grounds related to the following Facebook conversation, which was public:
[Eric’s note: this case involved the monkey and bear face emojis as depicted in Facebook’s emoji set 1.0. This is how they looked then:
For reasons I won’t bore you with, my blog software makes it painful to embed these graphics. So, instead, I’m using the current standard emoji versions. That improves readability but isn’t as authentic.]
“L.F. (plaintiff): The fat 🐷 goes crazy!!! 😜😜😜
M.I.: You mean the piglet roasting on a spit!!! 😭😭
L.F. (Plaintiff): Hahahah
L.F. (plaintiff): “And the 🐵head too!!! 😂😂😂😜😜
The court assessed this conversation as possibly insulting two supervisors: one of them, possibly, because of his corpulence; the other, because of his broad facial features that were the result of an illness and which would have reminded one of a bear. In this last respect, the court’s treatment of the expression “🐵head”, an emoji-and-writing composite, is of particular interest. For while the translation of the first emoji sequence as “fat pig” was obvious, the plaintiff, with 🐵, used the monkey-face emoji. To represent a bear, he ought actually to have resorted to 🐻. Although calling a supervisor “monkey head” would certainly be unflattering, if not outright insulting, in the specific case it may not have been assignable to a specific person. But according to the court’s assessment, both parties “obviously” perceived the emoji, 🐵, as a bear face; and so the court based its legal considerations on the parties’ common interpretation and the designation of a person as a “bear’s head.” (In the end, the termination was nullified for want of a proper warning.)
Finally, electronic communication symbols also gained substantive significance in a decision by the 3rd Criminal Division of the Federal Supreme Court upholding a preliminary seizure of personal property. In a case involving aiding and abetting a weapons offense, the court concluded that there was a reasonable suspicion arising from (among other things) a messenger-app exchange between the defendant and the principal perpetrator [A]. Initially, [A] had hidden a pistol in an airport toilet and sent the defendant pictures and a video of it via WhatsApp. The defendant replied with “two laughing ‘smileys’ with watery eyes” (probably 😂😂). The court interpreted these pictograms as expressing great amusement, meaning “Something is so incredibly funny that you laugh tears.” Thus, the court concluded, the defendant had encouraged [A] in his actions. In addition, the defendant had offered [A] a place to stay when [A] had written that he was in town for “business ;)”. Since the text message contained the “ironizing pictogram” ;), it could be presumed that the defendant knew that he was facilitating [A] in an illegal transaction, i.e., that he in fact wanted to retrieve the weapon.
A glance at the German cases suffices us to know that courts will have to deal repeatedly with questions of emoji interpretation. No generally applicable method has emerged so far. Rather, the lines of reasoning seem to depend heavily on gut feeling, and the courts’ approaches vary significantly. At one end of the spectrum is a mere awareness of the actual phenomenon; at the other, we find a greater understanding of the emoji’s impact on outcomes. Nevertheless, there seems to be a lack of appreciation of problems that may attend the interpretation of emoji, such as we have recently (and commendably) seen in an Australian case, Burrows v Houda,  NSWDC 485.
Of course, the depth of judicial wrangling with emoji depends on the specific circumstances; not every emoji appearing in the facts of the case is important enough to point toward a solution. However, a more elaborate approach, with reflection on the specifics of emoji (e.g., cross-platform and cross-version diversity) and their paralinguistic qualities, would be desirable. In my upcoming book (which will be published in 2022 by Mohr Siebeck), I therefore seek to raise awareness of the problem and hope to contribute to, and improve, the basis for judicial decision-making.