Substance and Style
| Jurisdiction | United States,Federal,California |
| Citation | Vol. 87 No. 4 Pg. 37 |
| Pages | 37 |
| Publication year | 2018 |
[1]
by Joyce R. Rosenberg
In February 2018, a major trade secrets case, Waymo L.L.C. v. Uber Technologies, Inc., was tried in the U.S. District Court for the Northern District of California.[2] An interesting detail emerged as the evidence came in. The evidence of the parties' communications and intent probably signals larger things to come.
Much of the evidence in Waymo v. Uber involved electronic communications between members of the parties' executive teams. And predominant in many of the emails, text messages, and instant messages were emojis[3] and emoticons. One key piece of evidence early in the trial was a text between two executives that consisted exclusively of the emoticon ;-) and a link to a YouTube video.[4]
Of course, emojis, and their more-primitive brethren emoticons, are those modern hieroglyphics that writers use to convey feelings in written messages. Emoticons, such as :-), have existed since at least 1982.[5] Emojis, the tiny, standardized cartoon images of faces, people, and things, came to the United States in 2010 or 2011.[6] There are now over a thousand emojis in use.[7]
The problem for legal readers, writers, and advocates is one of interpretation. Exactly what does any given emoji mean? "Just like non-verbal acts, which have various meanings, emoticons and emojis have no standard definitions. They can be used literally or ironically and can be interpreted by the sender and recipient in very different ways."[8]
Courts generally treat emojis as admissible parts of the circumstances of the entire communication.[9] Just a few examples: In a trial in the U.S. District Court for the Southern District of New York, prosecutors initially omitted the emojis as they read the defendant's internet posts aloud to the jury.[10] U.S. District Judge Katherine B. Forrest corrected the omission, instructing the jury that it had to consider the emojis along with the text as "part of the evidence of the document."[11] The Delaware Court of Chancery held that the inclusion of a smiley-face emoticon at the end of the plaintiff's text message was evidence "he was amused by yet another opportunity to harass" the defendant, despite the plaintiff's claims to the contrary.[12] And the Michigan Court of Appeals held that in a defamation case, a statement that included the emoticon :P "cannot be taken seriously as asserting a fact . . . . [A] :P emoticon is used to represent a face with its tongue sticking out to denote a joke or sarcasm."[13]
Although emojis present some special interpretive challenges, judges and juries are well-equipped to determine meaning and intent based on the context of any given communication.[14] In a recent article, law professor Eric Goldman explores the legal issues related to widespread use of pictographic communications.[15] To improve advocacy when dealing with emojis, Prof. Goldman suggests, lawyers can be mindful of several key pitfalls of interpretation:
1. Fluid Meaning
Emojis mean different...
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