They seem so harmless, even a bit childish—those proliferating little cartoon faces and symbols called emojis that people attach to their e-mail messages and social media posts. But if you are in business, they could draw big trouble.
In fact, recent research shows that from 2004 to 2018 there were 171 court opinions handed down in the United States referencing emojis and their brethren, emoticons, according to Jason A. Levine, an attorney at the law firm of Vinson & Elkins LLP. And the problem is only getting worse. Cases involving emojis have spiked upward in recent years, with a total of 33 emoji-related court decisions rendered in 2017 and 53 in 2018.
Emojis are popping up in a wide variety of matters including contract disputes, employment litigation (especially involving sexual harassment and discrimination lawsuits), and even murder cases, Levine points out. The types of emojis most often cited in these legal disputes have been smiley faces, winky faces, sad faces and guns.
The reason why emojis create potential legal problems can be boiled down to the old saying that a picture is worth a thousand words, and not all of them yours. Emojis can be interpreted in different ways by different people, which means they hold the potential to create huge misunderstandings. This is a serious problem for businesses because there are literally thousands of emojis that have been created. They have become all too common in business communications, which can quickly become miscommunications as a result.
Part of the problem stems from the fact that different technology platforms depict emojis in different ways, Levine notes. As a result, an emoji transmitted via an Apple iPhone or a Microsoft Outlook e-mail message can end up looking quite different when it’s received on an Android device.
The same is true for different versions of the same operating system, he adds. This can easily result in the sender on one platform thinking that an emoji clearly means one thing, when the recipient on a different platform sees something completely different and very likely conveying a different meaning. The problem can quickly become worse if the sender and recipient are unaware of the fact that the emojis look different to each of them.
To make matters worse, there is no standard dictionary definition for any given emoji. For example, the “folded hands” emoji can symbolize “please,” “thank you,” “prayer” and a high five—all very different meanings with different implications. Even something as obvious as a smiley face could have different meanings depending upon who is looking at it and how they choose to perceive it in the given context of the overall message or dialogue.
“As emojis are increasingly used in business communications, they are creating a surprising degree of liability exposure,” Levine says. “In some cases, the use of emojis can lead to accidental contracts and subsequent litigation.”
Emojis in Court
He cites a 2017 court ruling in Israel that underscores how two parties discussing a proposed business arrangement clashed because of different interpretations of emojis. The case involved text messages between a landlord and a prospective tenant concerning the rental of an apartment. The tenant sent a message to the landlord that included a series of emojis including: a smiling face, dancing women, a champagne bottle, a peace sign and a chipmunk.
The landlord took this to mean the tenant was going to rent the property and removed it from apartment listings, but the tenant did not end up renting it, and the landlord sued for damages. An important aspect of the case involved the court’s analysis of the emojis, and what they seemed to imply about the prospective tenant’s state of mind and intentions.
In a U.S. case, smiley face emoticons became important evidence for a plaintiff who claimed she was wrongfully dismissed as retaliation for taking time off under the Family and Medical Leave Act (FMLA). While discussing the employee’s dismissal, managers at the company sent out internal e-mails with smiley faces.
Because of the emojis the court concluded that the managers were happy to be terminating the plaintiff because her FMLA leave turned out to be convenient cover, which contradicted their testimony regarding the reason why she was fired. In the end, the court denied the company’s motion for summary judgment, and the smiley face emojis turned out to be a key piece of evidence.
Levine suggests that companies should be able to avoid falling victim to emoji jeopardy—or at the very least minimize it—by taking a few simple, preventive steps.
The easiest and most straightforward is to institute policies prohibiting the use of emojis in business communications, both internal and external. If employees choose to abide by these policies, and if these policies are enforced, that should greatly cut down on the threat. “Workplaces already have many codes of conduct regarding what employees can and cannot do, so it’s not that much of a stretch to say that the use of emojis is out of bounds,” he says.
Companies also can consider adding a disclaimer at the bottom of e-mails or other messaging systems where emojis might appear. The disclaimer language could say something like, “Emojis and other symbols can form no part of any offer, acceptance or agreement.” This may not be foolproof, Levine admits, but again, it should help cut down on the likelihood that a court would find a binding contract exists based in part on emojis.
“Some employees might feel constrained. But in the end, avoiding smiley faces and other emojis today could mean fewer sad faces tomorrow,” Levine stresses.
