Emojis have become part of our digital vernacular. Many people opt to use these small pictures to express what they want to say or are feeling, rather than type out boring old messages. Or worse – phone someone. So, it doesn’t come as a big surprise that emoji evidence is being used more frequently to support certain arguments in court cases.
A recent case in the US involving a prostitution ring brought the use of emoji evidence into the spotlight. Although, according to Santa Clara University law professor, Eric Goldman, the use of these tiny communicative pictures as evidence in legal cases, isn’t a new phenomenon. Tracking the use of emoticons and emojis in court cases in the US between 2004 to 2019 has shown a massive spike, especially in 2018 which saw a 30% increase. He has identified 171 court cases in which emoji evidence was allowed to be used to support a party’s argument in the US alone.
One of the main concerns when it comes to allowing emoji evidence to be used in a court case, is that their meaning could be interpreted differently. For instance, the abovementioned prostitution ring case in the US involved the use of a line of emojis in Instagram DMs – 👑👠💰- and what the line means. The prosecution argued that it implied there was a working relationship between the defendant and a person believed to be a prostitute, whereas the defendant argued that he was trying to strike up a romantic relationship. Another example involves an Isreali court decision where the court held that a line of emojis implied the intention of a couple to want the property from a landlord. There are more examples from the UK, and all over the world. As of writing this, South African courts have yet to face the question surrounding emoji evidence but it might soon come up, based on the global trend.
The majority of cases relying on emoji evidence have the same issue – the evidence is mostly left up to the interpretation of the judge or jury, as the parties will almost always try to argue the intention behind the meaning of the messages to support their own cases.
Another reason why emoji evidence can be confusing, is that emojis aren’t always the same across different devices and platforms. For instance, emojis on iOS devices differ from those on devices running Android. Social media platforms like Twitter and Facebook also have their own set of emojis. So this further adds to the confusion when having to interpret the meaning behind these seemingly innocent little pictures.
A universal rule of law is that law cannot be ambiguous, and should be certain. With so much uncertainty existing in the admittance of emoji evidence, it’s clear to see that the law hasn’t quite caught up to the world’s new way of communicating and how to interpret emojis. Also, the rules of evidence law are pretty complex and strict when it comes to hearsay evidence and digital evidence, which can be argued emoji evidence is. It all becomes rather complex, and even confusing, with it being clear that the laws surrounding new ways of communicating in the digital age have some catching up to do.