The Scrivener

• Publication year: 2019
• Pages: 60

THE SCRIVENER No. Vol. 30 Issue 5 Pg. 60 South Carolina Bar Journal March, 2019

Emoji and Emoticons in Legal Writing:

By Scott Mose

Let me say this up front before we even get started: emoticons and emoji should not be used in formal legal writing or in any business communications. Do not do it— not in court documents, not in e-mails, not in letters, not in texts, not in tweets.

However, we cannot pretend like they do not exist. In fact, 92 percent of the online population use emoji, and 2.3 trillion mobile messages incorporate emoji in a single year. See Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227, 1229 (2018). The “Face With Tears of Joy” emoji, alone, has been used in over two billion tweets. Id.

Therefore, whether or not you like emoticons and emoji, they are extremely popular and have even infltrated the courts, so now they are a part of our great body of law. For that reason, lawyers should know more about them and their potential legal consequences.

What are emoticons and emoji? Emoticons :)

An emoticon is “a little cartoon face that can be added to the text of an instant message. The faces come in numerous expressions and are used to illustrate how the speaker is feeling or the intended meaning of what he or she has written.” State v. Nero, 1 A.3d 184, 191 n.9 (Conn. App. Ct. 2010). Emoticons are made and transmitted by typing on a ASCII 128-character keyboard. See Intellect Wireless, Inc. v. HTC Corp., 910 F. Supp. 2d 1056, 1070 (N.D. Ill. 2012).

Emoji

“An emoji is ‘a small digital image or icon used to express an idea or emotion in electronic communication’.” Oxford Dictionaries Word of the Year 2015 is . . ., Oxford Dictionaries (Nov. 16, 2015) (found at http://blog.oxforddictionaries.com/2015/11/word-of-the-year-2015-emoji/[https://perma.cc/A9JB-NSFU]).

Note that authorities differ on the plural of the word “emoji,” spelling it both emoji (like the plural of “deer” is “deer”) and emojis. See Robinson Meyer, What’s the Plural of Emoji? The Atlantic (Jan. 6, 2016) (found at www.theatlantic. com/technology/archive/2016/01/ whats-the-plural-of-emoji-emo-jis/422763/) (favoring “emoji” because “[i]t is undeniable that the word emojis invites aging actors and unknowing grandparents to pronounce it like/uh-MO-jiss/, the last syllable rhyming with kiss. And that’s just ghastly.”).

For purposes of this column, the word “emoji” will mean both emoji and emoticons unless stated otherwise.

How did emoticons and emoji get into court, anyway?

At least 33 court opinions have addressed emojis since 2009. Before you think otherwise, judges and justices themselves did not start this. (“After careful consideration, the Court has decided that recusal is not warranted and denies the motion. However, the Court hereby enters sanctions for bringing the motion in the frst place.☺”). To the contrary, for the most part, courts just deal with them because they come up in the facts of the case.

However, at least one judge used his own emoji. In a court opinion in England concerning a family of children in foster care, Mr. Justice Peter Jackson interpreted a smiley face found in a note from the...