Blogs

Emoticons and Emojis Hazards to be Aware of in Discovery

By NJSBA Staff posted 04-12-2019 10:10 AM

  

Editor’s note: This article by Diana C. Manning and Kathryn B. Rockwood originally appeared in the April 2019 issues of New Jersey Lawyer. Read it here. (login required)

Technology has transformed how individuals communicate.1 Not long ago, people communicated by letter or telephone call.2 Advances in technology then paved the way for email and text messaging.3 Personal and business communications have evolved from formal letters that took days to arrive to the instant sending and receiving of written messages.4 In conversation, much of what one means to say is conveyed by how he or she says it, the expression on one’s face, and the harshness or softness of tone.5 The written word often does not capture humor, sarcasm or context the same way, and text messages, due in part to their brevity, exacerbate this issue. Emoticons and emojis are simply the next step in this evolution. These symbols and images replace words, superseding the actual language. For example, instead of driving to or calling the local Domino’s, ordering a pizza is now as simple as texting a ‘pizza’ emoji to a designated number.6

As this form of communication evolves, lawyers must be mindful of how it will impact their cases from the outset: What types of interrogatories and document demands need to be considered? Standard practice needs to be adjusted for a changing world.

Emoticon or Emoji: What’s the Difference?
Before delving into how they impact the discovery process, it is helpful to understand just what emojis and emoticons are. Emoticons are the simpler of the two types of characters.7 They are groups of keyboard characters, typically punctuation marks, that when combined are meant to portray facial expressions; the intent to show emotion in textual form.8 As defined by one court, “[a]n ‘emoticon’ is an icon formed by grouping keyboard characters together into a representation of a facial expression. Emoticons are used to suggest an attitude or emotion in computerized communications.”9 Well-known examples of emoticons are the smiley face, designated by :) or the frowning face, designated by :( as well as the winking face, designated by ;-) and the sticking your tongue out face, designated by :P.10

Emojis are more advanced, tiny images of characters (detailed pictographic symbols) representing everything from faces to flags to foods.11 The dictionary defines an emoji as “any of various small images, symbols, or icons used in text fields in electronic communications to express the emotional attitude of the writer, convey information succinctly, [or] communicate a message playfully without using words…”12 As of June 2018, according to Unicode, the database that records and classifies all emojis, there are a total of 2,823 officially recognized emojis.13

Why Understanding Emoticons and Emojis Matters
Before emoticons and emojis became popular, the written word was taken at face value, and used colorful language to express emotion or sentiment.14 Today, however, it is common to attempt to create tone or indicate emotion by using emoticons and emojis instead of incorporating clear language.15 Whether in an email or text, these symbols can be confusing or misinterpreted.16

Why does knowing about emoticons and emojis matter?17 As emoticons and emojis portray meaning, lawyers now need to consider the implication of that meaning in conveying the sender’s intent.18 Underlying this, lawyers must anticipate evidentiary issues arising from their use.19 As illustrated in the following case law, the increased appearance of emoticons and emojis in various legal contexts present real issues of interpretation—involving content and context—that will need to be addressed by the courts, attorneys, and litigants.

In State v. M.F., an unpublished opinion released in early 2018 by the New Jersey Appellate Division, the court grappled with the novel issue of authenticating and admitting proffered screenshots of emojis as evidence.20 After being convicted of violating a final restraining order obtained by his ex-girlfriend (A.T.), the defendant appealed, arguing, among other things, that messages from the application WhatsApp had been improperly authenticated and should not have been admitted into evidence.21 During the underlying bench trial, the state submitted as evidence screenshots of multiple messages sent by the defendant to A.T. using two different phone numbers.22 “The messages consisted of question marks followed by exclamation marks, emojis of lips and broken hearts, and text including ‘Aww,’ ‘Sexy,’ and ‘Wow.’”23

The trial court treated the screenshots, including emojis, as social media evidence and applied the existing standard under State v. Hannah for authentication and admission purposes.24 In rejecting the defendant’s argument that the screenshots were improperly authenticated, the Appellate Division noted that “[t]here was evidence showing sufficient context and content such that one would expect the messages were sent by defendant only.”25 First, A.T. testified that she recognized the phone numbers as belonging to the defendant.26 Second, the court reasoned that “the content of the messages supported a reasonable inference” the defendant was the sender because, in part, “[t]here [were] messages from both phones using the identical broken heart emoji.”27 Finally, as the messages contained broken heart emojis, this was consistent within the context of A.T. and the defendant’s “recently ended long-term romantic relationship.”28

Interpretation in the Absence of a Uniform Standard
Due to the lack of any uniform standard for interpreting the effect of emoticons and emojis on accompanying text, attorneys must always be sure the sender’s intent in the use of an emoticon/emoji is explored and explained.29 In many respects, emoticons and emojis symbolize and are meant to take the place of what the sender would normally have sent by way of a verbal communication.30 Why? Well, as a practical matter, it can be difficult to convey humor just using words.31 So, too, sarcasm and tone are flat using just words.32 Emoticons and emojis are meant to express that which cannot be truly expressed in an email or text message using only words (e.g., the smiley face, open-mouth smile, and frowny face are supposed to clarify or emphasize whatever is said).33 Unfortunately, a frowny face and its many iterations mean many things to many people, including displeasure, frustration, or anger.34

Emoticons and emojis inject subjective meaning and emotions and can take the place of words. While they are certainly helpful in furthering personal expression, such nonverbal communications present ripe legal dilemmas when judges and juries are asked to decipher intent in a manner at odds with what the speaker claims to have really meant. The opinion in State v. M.F. is telling of how emojis can directly impact a court’s determination of evidentiary issues.35 Practitioners should understand how the inclusion of emojis in a communication affects the context and content of a given situation.36

Other issues such as the platform utilized and advances in technology are also implicated. For example, the messages in State v. M.F. were transmitted in 2015 using the application WhatsApp; prior to Oct. 2017, WhatsApp was a unique platform in that it did not use its own set of emojis, but instead used Apple’s emoji sets.37 This changed in Oct. 2017 when “WhatsApp released its own emoji set and ceased using Apple emojis[.]”38 The differences between the Apple 2015 set and the WhatsApp 2017 set create potential for misinterpretation.39

Implications in Discovery
Importance of Platform or Device
A major challenge in interpreting the meaning of emojis as compared to emoticons is that there is cross-platform ambiguity in the design for emojis.40 Essentially, depending upon the platform and/or device one uses to create the emoji (e.g., Apple, Facebook, Gmail, Twitter, Samsung), the recipient of the emoji may not receive the same symbol or image that was initially sent.41 Perhaps the most stunning example of cross-platform design ambiguity is the emoji of a pistol. Creating this emoji on Gmail produces what appears to be a realistic handgun.42 However, creating a pistol emoji on an IPhone X, for example, results in what looks like a green squirt gun.43 The interpretation of a message that contains a squirt gun may be very different from one that contains the image of a handgun.44

Practitioners must be aware of the appearance of the emoticon or emoji to both the sender and recipient across different technology platforms. Depending upon the operating system or platform used, the recipient of the symbol may be viewing something very different than what was originally sent. The issue of cross-platform ambiguity is a compounded one because “[t]he sender and recipient might never know they[] [are] seeing different images.”45 Lawyers who learn to adapt their approach to discovery are better able to address these discrepancies.

Timing is Everything
In early 2018, Samsung introduced an ‘emoji-fix’ to address such cross-platform ambiguities and bring its emojis “much more in line with those of other vendors.”46 Before this update, Samsung users who created a pistol emoji saw a realistic handgun similar to Gmail’s current design; however, post-update Samsung pistol emojis are now in line with the green squirt gun Apple users create.47

This makes the timing of the communication in question especially relevant because whether it was sent prior to the 2018 Samsung update or after will impact the sender’s intended emoji and what the recipient received. As platforms introduce updated designs almost on an annual basis, keeping apprised of the new symbols is critical to identifying potential hazards in emoji interpretation. The issue of timing can be illustrated by a case involving the pistol emoji.

In 2016, in State v. Wilson, a New Jersey federal district court confronted the issue of emoticons in the context of discovery production and disclosure.48 Specifically, a defendant charged with the possession of a “firearm as a convicted felon” filed several motions regarding the production of discovery materials, including the disclosure of a confidential informant’s identity who had identified the defendant to the authorities.49

The basis of the defendant’s motion for disclosure was that “‘the information provided by the informant was the only evidence that [defendant] possessed a firearm.’”50 In opposing the motion, the United States pointed to other evidence, including the substance and timing of tweets from the defendant’s Twitter account that independently supported the underlying charge in the indictment.51 The United States submitted to the court a video uploaded to the defendant’s Twitter account shortly before the defendant was arrested in which the defendant is seen holding the firearm police had ultimately seized from him.52 Accompanying the video was the following tweet by the defendant: ‘“[a]nd I got a 40 [emoticon of a handgun] my 40 ah [expletive deleted] ya [emoticon of a handgun and an explosion].”’53 The court denied the defendant’s motion for disclosure of the informant’s identity, finding the defendant’s tweets constituted additional material evidence to support the charge of possession of a firearm beyond just the informant’s identifying information.54

In retrospect, the Wilson case highlights the issue of how emoji interpretation could be influenced by the platform used and the emoji design at the time in question.55 Setting aside the video of the defendant, had he tweeted the pistol emoji in 2018, the court’s analysis may have differed because of the emojis drastically different appearance.56 While it appears the Wilson court used the terms emoticon and emoji interchangeably, the defendant’s tweet contained two pistol emojis. Up until 2018, Twitter’s pistol emoji design was similar to a handgun, but was updated this year to a squirt gun.57 How would the court have weighed the significance of the defendant’s tweet if instead it contained two squirt gun emojis, which bear no resemblance to a realistic handgun? On the other hand, the question of interpretation would likely not have changed at all if the defendant was using a Microsoft platform instead of Twitter because Microsoft’s pistol emoji has had the same design from 2016 to the present.58

Language Barriers
Issues of interpretation are further compounded by actual language barriers across cultures. Emojis cannot be said to be universal: “[t]he images represented by emoji can have or develop very different overtones and usage depending on a user’s language and culture[]... [p]eople can use combinations that refer to specific words in their language, such as a bombshell movie…in English.”59

Emojis are used in place of verbs or adjectives as well as nouns, and different languages place those words in a different order than English, further complicating the possible interpretations.60 This nuance—what the sender’s native language is—may impact the interpretation of the emoji, and should be considered in discovery.61 Equally important are slang implications that often change the meaning attached to symbols, and would extend to emojis.62 Although the issue may not be dispositive, it is worth understanding the various meanings attributed to symbols on both a formal and informal spectrum.63

In State v. King, a recent unpublished opinion issued by the New Jersey Appellate Division, a defendant’s Facebook post containing vulgar language and several emojis was found not to constitute protected free speech when viewed in the context of threatening a potential witness.64 The defendant was indicted for witness tampering in connection with an ongoing murder trial involving his co-defendant, who was charged with murder.65 According to the state, the witness in question had concealed a firearm used by the murderer and thereafter received a subpoena from the state.66 The defendant, a distant relative of the alleged murderer, obtained a copy of the subpoena and posted it onto his Facebook page, accompanied by the following post:

Man f*** this ik [(I know)] it’s early n all but frankly IDGF [(I don’t give a f***)] this rat ass bitch got my cousin bagged all like that’s ya best friend SMD [(suck my d***)] who got a problem bout it’s w.e [(whatever)] I ain’t hiding [(three emoji 100 signs)] n u keep lying saying u didn’t but here’s the proof [(emoji 100)]. [Witness’s first name] the f***in Rat YA DONE!!!! Free Oosoo Milk Nificent and Mikey #FTR (F*** The Rats) #FTL [(F*** The Liars) (seven middle finger emojis)].67 (emphasis added).

The defendant argued that his Facebook post was merely an expression of his opinion that the witness was a hypocrite, and that it was in no way a threat.68 The trial judge issued an oral opinion after the indictment for witness tampering, finding the post revealed the intent of the defendant to threaten the witness.69 The judge noted that, ‘“[i]n direct response to [the witness] agreeing to testify in Michael Kee’s trial, [defendant] posted a photo of [the witness’s] subpoena on Facebook and included serious threatening language.’”70

Although the opinion does not specifically address the impact of the emojis as they relate to the court’s finding, the defendant’s inclusion of the ‘hundred points’ emoji warrants discussion of the meaning attached to symbols by different sources.71 Emojipedia lists a variety of slang implications attributed to the hundred points emoji, highlighting the difficulty presented by multiple interpretations of a single symbol.72 One slang implication lends support to the defendant’s intent to threaten based on the placement of the hundred points emoji in his Facebook post: “[t]his 100 emoji is commonly used as a shorthand for 100%, with the usage meaning ‘keep it real’ or a similar sentiment.”’73 On the other hand, the hundred points symbol “can be used to express pride or general acceptance of an idea” and, when used on Snapchat, “the 100 emoji appearing next to a fire emoji indicates a 100 day Snapstreak.”74 When emojis are implicated in evidentiary questions, it is not enough to assume that one’s personal interpretation of the symbol equates to the most commonly accepted interpretation.75 Indeed, when appropriate, it may be advisable to inform the factfinder of the multiple definitions or slang implications attributed to the same emoji, as this could impact the interpretation analysis.76

Discovery in the Age of Social Media and Emoji/Emoticons
Emoticons and emojis present unique challenges in the realm of e-discovery.77 In a time when thousands of documents are produced in electronic format, reviewing attorneys must exercise heightened scrutiny due to the limitations of searching for emoticons and emojis buried in the production.78 Traditionally, using various e-discovery platforms, attorneys may employ specific search terms or phrases when propounding or reviewing discovery for relevant information.79 However, emojis present a unique challenge in that search configurations for such symbols are limited and may not detect the emoji searched for.80 It is recommended that attorneys consult various e-discovery platforms to determine whether and to what extent the e-discovery tools can detect emoticons and emojis.81

Additionally, in the context of responding to requests for documents, attorneys must take sufficient time to conduct a similar review to ascertain whether emoticons or emojis are present before production.82 If emoticons or emojis are identified, attorneys may need to consult with their client in order to clarify issues such as intent and context prior to responding to document requests.83 Understanding a client’s reason for utilizing an emoji may provide a strategy or defense, or a need for one, that was previously unknown.84

Written discovery should not be overlooked.85 It is important to tailor interrogatories to address issues concerning emoticons and emojis.86 These include, but are not limited to, identifying the platform and device used to send or receive the communication, the date and time of the communication, as well as the native language of the person sending the message.87 Attorneys must craft interrogatories to extract potentially material information such as intent, context, and how the communication was interpreted.88 For example, where an attorney represents an employee in a sexual harassment claim, a basic interrogatory would inquire as to whether the employer “sent kissy face emojis to everyone, or just the one employee asserting a sexual harassment claim.”89 The response to this would potentially reveal useful information concerning the employer’s intent and the context of the emoji for purposes of establishing or negating the employee’s claim.

Written discovery needs to be adapted to determine the specific platform the text, email, or message was sent from.90 Additionally, the type and model of the device used by the sender needs to be confirmed.91 A potential hazard of neglecting to pay careful attention to these issues in discovery includes overlooking the fact that the appearance of emojis differs across platforms and as a result, between the sender and the recipient.92 Where both the sender and recipient of a communication containing an emoji utilize the same platform (e.g., Apple), there is less of a risk of facing interpretation issues because the emoji will be the same for both individuals.93 On the other hand, identifying early on that the sender used a different platform than the recipient can save time down the road, because one can then research the appearance of the emoji for the sender and the recipient.94

Conclusion
The way emoticons and emojis are incorporated into discovery and trial practice is increasingly important. Emoticons and “[e]mojis have evidentiary significance, and lawyers who want a finder of fact to understand an online conversation or text message fully cannot afford to leave them out or not address them as a vital part of a larger piece of evidence.”95 A proper foundation must be laid, and it is essential that the record is complete, capturing the actual image/symbol presented to the trier of fact, not just the word [emoticon] or [emoji], to accurately reflect the declarant’s intent. As the case law shows, the need to adapt trial and discovery practices to the changing ways by which people communicate is essential to proving one’s case.

Endnotes

  1. See Cydney Grannan, What’s the Difference Between Emoji and Emoticons?, Encyclopedia Britannica, https://www.britannica.com/story/ whats-the-difference-betweenemoji-and-emoticons. (last viewed on Nov. 26, 2018).
  2. Id.
  3. Id.
  4. Id.
  5. Id.
  6. Domino’s, Domino’s AnyWare, https: //www.anyware.dominos.com/. (last viewed on Oct. 30, 2018).
  7. Cydney Grannan, What’s the Difference Between Emoji and Emoticons?, Encyclopedia Britannica, https://www.britannica.com/story/ whats-the-difference-betweenemoji-and-emoticons. (last viewed on Nov. 26, 2018).
  8. Emoticon, Merriam-Webster, https://www.merriam-webster.com/ dictionary/emoji. (last viewed on Oct. 30, 2018).
  9. Ghanam v. Does, 845 N.W.2d 128, 133, n.4 (Mich. Ct. App. 2014).
  10. See Cydney Grannan, What’s the Difference Between Emoji and Emoticons?, Encyclopedia Britannica, https://www.britannica.com/story/whats-the-difference-betweenemoji-and-emoticons. (last viewed on Nov. 26, 2018).
  11. Emoji, Merriam-Webster, https://www.merriamwebster.com/dictionary/emoji. (last viewed on Oct. 30, 2018).
  12. Id.
  13. Emoji Statistics, Emojipedia, emojipedia.org/stats/. (last viewed on Oct. 30, 2018). For the full list of emojis recognized by Unicode, see Full Emoji List, v11.0, Unicode, unicode.org/emoji/charts/full-emojilist.html. (last viewed on Oct. 30, 2018).
  14. See Patrick M. Milott, :-P Emojis and Emotions in Court, The Reporter, http://reporter.dodlive.mil/ 2018/08/08/emojis/. (last viewed on Nov. 26, 2018).
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. State v. M.F., No. A-3602-15T2, 2018 N.J. Super. Unpub. LEXIS 41 (App. Div. Jan. 9, 2018).
  21. Id. at *2, *6, *8.
  22. Id. at *1-2.
  23. Id. at *2.
  24. Id. at *12 (applying the standard elucidated in State v. Hannah, 448 N.J. Super. 78 (2016)).
  25. Id. at *15.
  26. Id.
  27. Id. at *14.
  28. Id. at *13.
  29. See Patrick M. Milott, :-P Emojis and Emotions in Court, The Reporter, http://reporter.dodlive.mil/

2018/08/08/emojis/. (last viewed on Nov. 26, 2018).

  1. See Emoticon, Merriam-Webster, https://www.merriam-webster.com/ dictionary/emoticon. (last viewed on Oct. 30, 2018); see Emoji, Merriam-Webster, https://www.merriamwebster.com/dictionary/emoji. (last viewed on Oct. 30, 2018).
  2. See id.
  3. Id.
  4. See Cydney Grannan, What’s the Difference Between Emoji and Emoticons?, Encyclopedia Britannica, https://www.britannica.com/story/ whats-the-difference-betweenemoji-and-emoticons. (last viewed on Nov. 26, 2018).
  5. See Patrick M. Milott, :-P Emojis and Emotions in Court, The Reporter, http://reporter.dodlive.mil/ 2018/08/08/emojis/. (last viewed on Nov. 26, 2018).
  6. See State v. M.F., No. A-3602-15T2, 2018 N.J. Super. Unpub. LEXIS 41 (App. Div. Jan. 9, 2018).
  7. See id.
  8. WhatsApp, Emojipedia, https://emojipedia.org/whatsapp/. (last viewed on Oct. 30, 2018).
  9. Id.
  10. See id.
  11. See Full Emoji List, v11.0, Unicode, http://unicode.org/emoji/charts/full -emoji-list.html. (last viewed on Oct. 30, 2018).
  12. Id.
  13. Id.
  14. Id.
  15. Samsung Experience 9.0 Emoji Changelog, Emojipedia (Feb. 12, 2018), https://blog.emojipedia.org/ samsung-experience-9-0-emojichangelog/#fn1. (last viewed on Oct. 30, 2018).
  16. Edwina Oliver, Emojis in Law: Making a Mess of Messaging, Lawyers Weekly (April 19, 2018), https:// www.lawyersweekly.com.au/wigchamber/23089-emojis-in-lawmaking-a-mess-of-messaging. (last viewed on Oct. 30, 2018).
  17. Samsung Experience 9.0 Emoji Changelog, Emojipedia (Feb. 12, 2018), https://blog.emojipedia.org/ samsung-experience-9-0-emojichangelog/#fn1. (last viewed on Oct. 30, 2018).
  18. See id.
  19. U.S. v. Wilson, No.: 15-cr-00521, 2016 U.S. Dist. LEXIS 87908 (D.N.J. July 6, 2016).
  20. Id. at *1.
  21. Id. at *16.
  22. Id. at *16-*17.
  23. Id. at *18.
  24. Id.
  25. Id. at *31.
  26. See Thuy Ong, Google and Facebook adopt water gun emoji, leaving Microsoft holding the pistol, The Verge (April 25, 2018), https:// www.theverge.com/2018/4/25/1727 8902/google-dumping-pistol-emojiwatergun-microsoft. (last viewed on Oct. 30, 2018).
  27. Id.
  28. Id.
  29. Id.
  30. Emoji and Pictographs, Unicode, http://www.unicode.org/faq/emoji_ dingbats.html. (last viewed on Oct. 30, 2018).
  31. Id.
  32. See id.
  33. See, e.g., Hundred Points, Emojipedia, http://emojipedia.org/hundredpoints-symbol/. (last viewed on Oct. 30, 2018).
  34. Id.
  35. State v. King, 2018 N.J. Super. Unpub. LEXIS 2215 (App. Div. Oct. 9, 2018).
  36. Id. at *1-*2.
  37. Id. at *3-*4.
  38. Id.
  39. Id. at *4.
  40. Id.
  41. Id. at *6.
  42. Hundred Points, Emojipedia, http://emojipedia.org/hundredpoints-symbol/. (last viewed on Oct. 30, 2018).
  43. Id.
  44. Id.
  45. Id.
  46. See State v. King, 2018 N.J. Super. Unpub. LEXIS 2215, at *4 (App. Div. Oct. 9, 2018).
  47. See id.
  48. See Rhys Dipshan, E-Discovery Can Tame Emojis, But Can’t Outpace Them, Law.com, https://www.law.com/legaltechnews/2018/02/26/e-discovery-cantame-emojis-but-cant-outpacethem/. (last viewed on Nov. 26, 2018).
  49. Id.
  50. Id.
  51. Id. 
  52. See id.
  53. See U.S. v. Wilson, No.: 15-cr-00521, 2016 U.S. Dist. LEXIS 87908 (D.N.J. July 6, 2016). 
  54. See id.
  55. See Apatoff v. Munich Re Am. Servs., No. 11-7570, 2014 U.S. Dist. Lexis 106665 (D. N.J. Aug. 1, 2014).
  56. See U.S. v. Wilson, No.: 15-cr-00521, 2016 U.S. Dist. LEXIS 87908 (D.N.J. July 6, 2016).
  57. See id.
  58. See Edwina Oliver, Emojis in Law: Making a Mess of Messaging, Lawyers Weekly (April 19, 2018), https://www.lawyersweekly.com.au/ wig-chamber/23089-emojis-in-lawmaking-a-mess-of-messaging. (last viewed on Oct. 30, 2018).
  59. See U.S. v. Wilson, No.: 15-cr-00521, 2016 U.S. Dist. LEXIS 87908 (D.N.J. July 6, 2016).
  60. George Khoury, Not Your Father’s E-Discovery: Emoji Evidence, FindLaw (Oct. 16, 2017), https://blogs. findlaw.com/strategist/2017/10/notyour-fathers-e-discovery-emojievidence.html. (last viewed on Oct. 30, 2018).
  61. See id.
  62. See Edwina Oliver, Emojis in Law: Making a Mess of Messaging, Lawyers Weekly (April 19, 2018), https://www.lawyersweekly.com.au/ wig-chamber/23089-emojis-in-lawmaking-a-mess-of-messaging. (last viewed on Oct. 30, 2018).
  63. See id.
  64. Id.
  65. See id.
  66. John G. Browning and Gwendolyn Seale, More Than Words The Evidentiary Value of Emoji, 57 No. 10 Dri for Def. 34 (2015).

Permalink