How Emojis May Get You in Legal Trouble

Think twice about texting that winky face in California

By Benjy Schirm, J.D. | Last updated on January 24, 2023

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In today’s fast-moving world, we want to say whatever we can as fast as we can. This means we often employ truncated spellings of words and entire phrases, as well as the use of emojis—those pictures of emotions and objects found on nearly every device and social media platform. “Emojis are interesting because context creates the message,” says Santa Monica attorney Jon Pfeiffer. “The ways in which you communicate with your friends may have different meanings to someone outside of that group.” Anytime we exchange ideas, it requires interpretation. But with an entirely new symbolic language thrown into the mix, communicating can become laced with confusing signals and things can get dicey—fast. And when things get dicey, litigation is often not far behind. A 12-year-old in Virginia is facing criminal charges for sending what has been deemed to be a threat via emojis; a will in New Zealand was upheld, despite it being sent in texts that contain emojis. “I had a case with two producers,” says Pfeiffer. “One party had been texting with a potential hire that was sexual in nature. There were explicit texts that—and I’ve been doing this for a while—made me cringe. And the response [by my client] was a smooch. They argued consent, and we are arguing she was trying to put him off. [Emojis] can be taken many ways, for better or worse.” Research is showing emojis elicit mirrored emotional responses, leading some to believe that they may be a more accurate form of communication. By the same token, Pfeiffer says, emojis can add more ambiguity when used as substitutes for words, creating legal issues. “The problem is in the subtlety,” says Pfeiffer. “We’ve all received an email or a text that’s made us say, ‘I’m not sure how to take that. Is it snarky or just a joke?’ There are all sorts of definitions for all of these things. Therein lies the ambiguity. “There is no universal definition. No court has ruled that a smiley face with crying means this and only this,” Pfeiffer adds. “They have only been around for the last 10 years, so it makes sense that we are just feeling our way through it.”

What Should You Do?

Pfeiffer’s advice about using emojis in important business communications can be summed up in one contraction: don’t. “If it’s an important conversation, resort to emails,” he says. “For the heavy lifting, rely on your email or, god forbid, pick up the telephone.” Quite simply, a text message can lead to a sexual discrimination lawsuit, so be careful what you send. If you’re on the receiving end, and a text has left you confused or uncomfortable, make sure you hire a reputable and experienced attorney; they can work through the ambiguities, and defend your right to a safe workplace. For more information about this area, see our overviews on sexual harassment and employment litigation.

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