How your simple emoji use could surprisingly land you in a legal bind!
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In this day and age, many online interactions include the use of emojis. People use them to express themselves, to lighten the mood, and even to evoke reactions from others.
But did you know that the seemingly innocent use of emojis could unexpectedly land you in hot water?
While we love using the likes of the thumbs-up emoji for when we mean well, using them in the wrong context can have serious legal implications.
Marilyn McMahon, a Professor of Law at Deakin University, explained that emojis often 'raise some of the most troubling cases'.
When charged with criminal offences involving emojis, most individuals would plead that they were 'just joking'. However, this defence usually doesn't find favour in court, and according to Professor McMahon: 'Their defence is typically unsuccessful.'
Below are some cases related to the use of seemingly harmless emojis:
Violent Emoticons
In the US, children as young as 12 have been charged after posting threatening messages online using bomb or knife emojis. In 2016, one 12-year-old student was charged with threatening her school after posting the words ‘killing’ and ‘meet me in the library’ accompanied by gun, bomb, and knife emojis on a social media platform.
‘The issue has been to interpret whether it is a serious threat that has been uttered by the young person or whether it's… just letting off steam,’ Professor McMahon said.
In the same year, a 22-year-old man in France was sentenced to three months in prison after he sent his ex-girlfriend a series of texts with a gun emoji.
In 2017, a man in New Zealand made threats to his ex-partner accompanied by an emoji of an aeroplane. The court determined that the emoji meant that the offender was sincerely intending to take a flight–as they lived at opposite ends of the country–and carry out his threats.
The Thumbs-Up
Earlier this year in Canada, a farmer named Chris Achter was ordered to pay $82,000 ($94,000 AUD) for a breach of contract when a thumbs-up emoji he sent was interpreted as legally binding consent.
This decision was taken due to Achter’s history of using 'curt words' such as 'OK' and 'looks good' to signify his consent to previous contracts via text.
The Full Moon
In an ongoing US case, billionaire investor Ryan Cohen sent out a tweet of a full moon emoji in relation to a stock he owned.
‘When people are hyping [promoting] stocks, they say that the stock is going to go “to the moon”,’ explains Professor Eric Goldman, Co-Director at the High Tech Law Institute at Santa Clara University.
It was argued that his emoji use was a covert signal to people to buy stocks ‘in preparation for selling off his stake’ as reported by the Washington Post. This action could constitute insider trading.
The judge noted that 'emojis may be actionable if they communicate an idea that would otherwise be actionable'.
‘A fraudster may not escape liability simply because he used an emoji,’ said Judge Trevor McFadden.
‘That's another example of an area where a single emoji can cause potentially serious legal consequences, in that case, potentially securities fraud,’ Professor Goldman said.
Now you might be wondering…could it happen here too?
Andrew Rich, an Employment Lawyer with the law firm Slater and Gordon, said that while we haven’t yet seen such a case in Australia, the case such as the ‘thumbs-up’ emoji case in Canada could happen here.
‘[The case] has some relevance in Australia insofar as it may be used here to have some persuasive value.’
‘So you can imagine lawyers for a [client] raising it here and saying, “Look what's happened in Canada, the court here should adopt the same approach”. It's not novel anymore,’ Mr Rich said.
He also said that he’s seeing more businesses communicating using emojis, especially in the construction industry.
‘These sorts of communications are on the rise.’
‘I'm talking about tradies, principally, [communicating] about the length of time for which they'll be engaged and the terms and conditions of their engagement.’ Mr Rich added.
He said that there are ‘back and forths’ between contractors and employers about contracts, which ‘sometimes [involve] emojis [and] text messages’.
So he advised people to just ‘Be careful.’
‘Really, it's a matter of being on your guard. And being careful in your communications and not responding before you've thought about what the effect of your response might be,’ he added.
Meanwhile, Professor Goldman reiterated that clarity is key.
‘[T]here are many circumstances in which emojis are actually the best way to express a person's thoughts or feelings,’ Professor Goldman said.
‘[But] I encourage people to speak with as much precision as they can.’
Have you ever experienced anyone misinterpreting emojis you’ve sent them? Share your experience with us in the comments below!
But did you know that the seemingly innocent use of emojis could unexpectedly land you in hot water?
While we love using the likes of the thumbs-up emoji for when we mean well, using them in the wrong context can have serious legal implications.
The use of emojis in the wrong context may have serious implications in court. Image source: Freepik.
Marilyn McMahon, a Professor of Law at Deakin University, explained that emojis often 'raise some of the most troubling cases'.
When charged with criminal offences involving emojis, most individuals would plead that they were 'just joking'. However, this defence usually doesn't find favour in court, and according to Professor McMahon: 'Their defence is typically unsuccessful.'
Below are some cases related to the use of seemingly harmless emojis:
Violent Emoticons
In the US, children as young as 12 have been charged after posting threatening messages online using bomb or knife emojis. In 2016, one 12-year-old student was charged with threatening her school after posting the words ‘killing’ and ‘meet me in the library’ accompanied by gun, bomb, and knife emojis on a social media platform.
‘The issue has been to interpret whether it is a serious threat that has been uttered by the young person or whether it's… just letting off steam,’ Professor McMahon said.
In the same year, a 22-year-old man in France was sentenced to three months in prison after he sent his ex-girlfriend a series of texts with a gun emoji.
In 2017, a man in New Zealand made threats to his ex-partner accompanied by an emoji of an aeroplane. The court determined that the emoji meant that the offender was sincerely intending to take a flight–as they lived at opposite ends of the country–and carry out his threats.
The Thumbs-Up
A thumbs-up emoji that was sent by a Canadian farmer was found to be legally binding. Image source: Freepik.
Earlier this year in Canada, a farmer named Chris Achter was ordered to pay $82,000 ($94,000 AUD) for a breach of contract when a thumbs-up emoji he sent was interpreted as legally binding consent.
This decision was taken due to Achter’s history of using 'curt words' such as 'OK' and 'looks good' to signify his consent to previous contracts via text.
The Full Moon
In an ongoing US case, billionaire investor Ryan Cohen sent out a tweet of a full moon emoji in relation to a stock he owned.
‘When people are hyping [promoting] stocks, they say that the stock is going to go “to the moon”,’ explains Professor Eric Goldman, Co-Director at the High Tech Law Institute at Santa Clara University.
It was argued that his emoji use was a covert signal to people to buy stocks ‘in preparation for selling off his stake’ as reported by the Washington Post. This action could constitute insider trading.
The judge noted that 'emojis may be actionable if they communicate an idea that would otherwise be actionable'.
‘A fraudster may not escape liability simply because he used an emoji,’ said Judge Trevor McFadden.
‘That's another example of an area where a single emoji can cause potentially serious legal consequences, in that case, potentially securities fraud,’ Professor Goldman said.
Now you might be wondering…could it happen here too?
Andrew Rich, an Employment Lawyer with the law firm Slater and Gordon, said that while we haven’t yet seen such a case in Australia, the case such as the ‘thumbs-up’ emoji case in Canada could happen here.
‘[The case] has some relevance in Australia insofar as it may be used here to have some persuasive value.’
‘So you can imagine lawyers for a [client] raising it here and saying, “Look what's happened in Canada, the court here should adopt the same approach”. It's not novel anymore,’ Mr Rich said.
He also said that he’s seeing more businesses communicating using emojis, especially in the construction industry.
‘These sorts of communications are on the rise.’
‘I'm talking about tradies, principally, [communicating] about the length of time for which they'll be engaged and the terms and conditions of their engagement.’ Mr Rich added.
He said that there are ‘back and forths’ between contractors and employers about contracts, which ‘sometimes [involve] emojis [and] text messages’.
So he advised people to just ‘Be careful.’
‘Really, it's a matter of being on your guard. And being careful in your communications and not responding before you've thought about what the effect of your response might be,’ he added.
Meanwhile, Professor Goldman reiterated that clarity is key.
‘[T]here are many circumstances in which emojis are actually the best way to express a person's thoughts or feelings,’ Professor Goldman said.
‘[But] I encourage people to speak with as much precision as they can.’
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