Emojis in Court: No Laughing Matter

• Year: 2025
• Citation: Vol. 94 No. 2 Pg. 47
• Pages: 47

Emojis in Court: No Laughing Matter No. 94 J. Kan. Bar Assn 2, 47 (2025) Kansas Bar Journal April, 2025

Emojis in Court: No Laughing Matter

Lindsey R. Freihoff, Civil Defense Litigation Associate, Baker Sterchi Cowden & Rice LLC

I.

“[A]n emoji is an 'imag[e], symbo[l], or ico[n] used in text fields in electronic communication (as in text messages, e-mail, and social media) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words[.]'"^[1] Emojis first appeared in the late 1990s on Japanese mobile phones and have since become a staple to everyday communication.^[2]"They show up in press releases and corporate emails. The White House once issued an economic report illustrated with emoji. In 2015, became Oxford Dictionaries 'Word' of the Year."^[3] They continue to evolve and grow across our cultures, screens, and throughout time.^[4]

Despite their whimsical undertones, deciphering the connotation of these expressions can result in a game of legal charades. "As emoticons and emojis convey meaning, lawyers now need to consider their potential effect in conveying the sender's intent. Lawyers must also anticipate evidentiary issues arising from their use."^[5] "[I]ncreases in the appearance of emoticons and emojis in various legal contexts present real issues of interpretation that will need to be addressed by the courts, attorneys, and litigants."^[6] They present new avenues of cautionary advice to clients and there is no dictionary that could plausibly "account for people's innovative or nonstandard uses and understandings of emojis."^[7] Take, for instance, the "person shrugging emoji": this could be interpreted as "ignorance, indifference, self-acceptance, passive-aggression, annoyance, giving up, or not knowing what to make of something. It could also be a visual form of the one-word response of indifference, 'whatever.'"^[8]

Six years ago, University of Kansas Law School Professor Joyce Rosenberg anticipated that emojis would "become just one more ordinary component in the endless variety of human communication."^[9] And, indeed, we are now seeing more and more cases in which courts must interpret the intended meaning of emojis used in communications.

Disputes involving emojis and their admissibility use can come up in nearly every aspect of litigation, from pleadings to discovery, dispositive motions, damages, opening statements, closing arguments, jury instructions, and settlements.^[10]

II.

A Canadian court recently made international headlines when it held "that the 'thumbs-up' emoji is just as valid as a signature[]"^[11] In that case, a potential buyer sent a mass text message to clients requesting to purchase bushels of flax.^[12] The buyer spoke with a potential farmer and texted the farmer a photo of a contract to deliver the flax and asked that he confirm delivery.^[13] The farmer responded with a "thumbsup emoji." However, he never delivered the bushels, and as months went on the price of the bushels increased.^[14] The buyer subsequently sought to enforce the "thumbs-up emoji" as assent to a contract, and the farmer alleged that this emoji was only meant to indicate the receipt of the text message.^[15]In finding for the buyer, the court referred to an online dictionary definition of the "thumbs-up" symbol, and readily acknowledged that this emoji "is a non-traditional means to 'sign' a document" and, in this case, "was a valid way to convey the two purposes of a 'signature[.]'"^[16] The court rejected a potential policy argument that acceptance of the emoji would in effect "open the flood gates," instead finding that it should "'attempt to stem the tide of technology and common usage' of emojis."^[17]

III.

In another recent high-profile case that turned on emoji use, In re Bed Bath &Beyond Corporation Securities Litigation, the defendant, Ryan Cohen, invested into a large stake in Bed Bath and Beyond.^[18] Known for his investments that sent stock prices soaring, Cohen interacted with hundreds of thousands of online users on Twitter, fueling the online energy for the stock market.^[19] "On August 12, 2022, CNBC tweeted a negative story about Bed Bath [and Beyond], accompanied by a picture of a women pushing a shopping cart. Cohen fired back:

^[20]

The Twitter community understood the emoji with the "smiley moon" to signal "'to the moon' or 'take it to the moon.'"^[21] Or, in other words, to tell his followers that they should buy Bed Bath and Beyond stock because it was going to go up.^[22] His followers responded, sending prices soaring.^[23]

After he authored this tweet, Cohen filed two documents with the Securities and Exchange Commission.^[24] He filed a form 13D, indicating that he had not recently sold and had no official plans to sell his stock, and a Form 144, which disclosed a potential to sell his stock.^[25] Just four days after he wrote the tweet, Cohen profited $68 million dollars by selling all of his stock in Bed Bath and Beyond.^[26] Once it became public that Cohen sold, the stock plummeted.^[27]

Plaintiff-investor Bratya SPRL brought suit against Cohen for this tweet, alleging a pump-and-dump scheme to drive up stock prices and leave his followers "holding the bag."^[28]Cohen argued this "smiley moon" emoji could not be seen as misleading for the pump-and-dump allegation because "there [was] no way to establish .. the truth ... of a tiny lunar cartoon" and it had no definite meaning.^[29]

The District Court of the District of Colombia disagreed with Cohen, finding the lunar cartoon actionable.^[30] It reasoned that "[e]mojis are symbols. Like symbols, language can be ambiguous ... Just because language can be ambiguous does not mean it is not actionable or capable of being correctly understood."^[31] However, "like language, a symbol's meaning may be clarified by 'the context in which [the] symbol is used.'"^[32] "A fraudster may not escape liability simply because he used an emoji."^[33]

Liability turned on the meaning of the emoji — that the cartoon had a particular meaning in the context that it was used and that such a meaning was actionable.^[34] The Court found that the plaintiff plausibly alleged that Cohen told hundreds of thousands of followers to hold or...