Litigating the Meaning of Emojis: Admitting and Using Emoji Evidence to Support Claims or Defenses

A frequently repeated statistic is that 92% of people use emojis. Indeed, all text messaging systems offer a selection of emojis and GIFs as automated responses for that quick reply. The problem with emojis, emoticons, GIFs, memes, and other "pictures" is ambiguity and misunderstanding. Misinterpretation can be created by the software used to send and receive them as well as by hidden and secondary meanings to many pictures. Emojis and the platforms that support them are constantly being updated, so it is important to be certain that the emoji alleged to have been sent even existed at the time of an alleged message. Sometimes the recipient does not recognize the picture.

With 92% of the world using pictures to communicate or to provide context, both for personal and business purposes, litigation about the meaning of these "pictures" and their legal consequences is increasing in all kinds of civil (as well as many criminal) cases: securities fraud, employment discrimination and harassment, breach of contract, defamation, and many more. Clients are asking their attorneys whether they can rely on those types of communications, and whether liability exists for using or ignoring them. 

Litigators must understand all the different causes of the ambiguity; the challenges with searching for, obtaining, and authenticating these pictures; demonstrating intent and navigating hearsay; and many other substantive and evidentiary challenges. They also need to consider basic issues such as whether the judge or a jury interprets emojis and who would be qualified to provide an opinion as to what they are and what they mean.

Listen as this experienced panel discusses how to properly handle emojis in litigation that appear in texts, emails, work-chat apps, and more.