Emoji, as we know them today, were first introduced in 1999, and have proliferated prodigiously in type and use. Simply view the current approved emoji list v13.0 (January 2020), put together by the Unicode Consortium to see the now more than 3,300 emoji. And as substantial as that number is, consider that according to the Wall Street Journal (July 2019), Slack now contains 26 million – yes, million – emoji, with one Slack client having created more than 50,000 custom emoji alone.

What began as a simple way to add emotional nuance to flat text communications – beginning with the emoticon “:)“ introduced in 1982 – has become the content itself. And as such, understanding emoji use in communications can be a critical component of discovery. (For an in-depth discussion on the impact of emoji in the workplace and their implications in litigation and investigations you can download our whitepaper here.)

From Social Liability to Legal Liability

The errant use of emoji in social communications on public-facing platforms such as Twitter and Facebook, can have significant repercussions: friends lost, reputations damaged, and careers forfeited.

However, inappropriate use of emoji in workplace communication not only carries the stigma and repercussions of social misuse but can create legal liabilities.

For human resources and corporate legal departments, policies regarding the use of emoji should be requisite. What emoji can be used, in what types of communications they are allowed, and common usage meanings must be codified to mitigate potential liability.

For attorneys, comprehending emoji (in all their relevant contexts and meanings across demographics, geographies, and even timelines) is as necessary as understanding written and spoken language. Emoji can be highly relevant in both criminal and civil matters, and as an internal matter their misuse can be the catalyst for not only disciplinary action including dismissal, but litigation.

Emoji Precedent

Eric Goldman, a Professor of Law at Santa Clara University School of Law and recognized expert, notes that he “found 101 cases in 2019 that referenced “emoji” or “emoticon” which is nearly double the number from 2018 (2019 Emoji Law Year-in-Review). He cites a total of 271 cases from 2004 to January 31, 2019. Consider that research tools such as LexisNexis® and Westlaw® do not facilitate searching on emoji, and court opinions tend to only reference them with imprecise naming conventions (e.g. “smiley face”), so there’s a high likelihood that there are many more cases relevant to emoji use than appear in the listing, as Goldman himself notes.

In one example, Apatoff v Munich Re (D.N.J., August 1, 2014), Plaintiff, Elaina Apatoff was dismissed by Munich Re after investigating what they believed to be fraud concerning her medical leave. While Plaintiff was on medical leave, her employer Munich Re, received an anonymous tip that Elaina was seen doing yard work as well as doing work associated with moving from house the house. This led to defendant Munich Re hiring a private investigator who confirmed the information detailed in the anonymous tip and consequently terminated her employment.

The defendant claimed she was acting in accordance with her doctor’s suggestion (her doctor affirmed) that she gets exercise of this nature to assist with the asthma condition and improve her health. Munich Re employed an “honest mistake” defense: Had we known this we would have not terminated. Does internal email containing smiley face emoticons and exclamation points support this defense? See here:

:-)) did Ray chat with you about Elaina?

Yes he did. Thank you for your help. That deserves a big :-))!!!

It did not.

In his opinion, United States District Judge Robert B. Kugler writes:  “The Court believes that a reasonable jury could find that the ‘emoticons,’ attached to the emails of two Munich Re managers late in the day on which Plaintiff was terminated, are evidence that the decisionmakers at Munich Re were happy to be able to terminate Plaintiff. This was viewed very unfavorably by the court.” (citation omitted)

Consider that if emoji such as or were used, depending on the collection process and review platform, used they may have not appeared at all. What would be the potential impact on the judge’s opinion in their absence?

Emoji are strong indicators of intent – even one’s thought process – and can represent compelling documentary evidence. Emoji cannot be treated like any other graphic file that may include a company logo or other graphic element that are irrelevant to the issue(s) at controversy. They are not a file type, they are content.

Because emoji (and emoticon) exist precisely to communicate meaning, and add not just nuance, but sometimes the overt meaning that may even belie the non-controversial text in the communication, they cannot be overlooked. Rather, they must be specifically targeted in discovery. (Additional civil and criminal case law examples are provided in our whitepaper.)

Discovery Challenges

The challenge for litigators involves the entirety of the discovery process from early case assessments, scope and planning (including developing custodian interviews), through discovery and review (training reviewers on emoji-specific meanings and methods for tagging and issue coding) and production (emoji fidelity).

In June of 2019 Relativity® introduced emoji analytics within their short message format viewer (“RSMF”) putting them at the forefront in this regard. The RSMF provides an emoji dashboard that lists all emojis (there are limitations), their frequency of use, and enables searching on specific emojis. So, the technology is getting there in some regard. Discovery strategy needs to get there too.

However, understanding emoji in communications and dealing with the impact of their use in discovery (in myriad platforms like Slack, Teams, and the short messaging formats from text to Bloomberg) hasn’t been raised a whole lot yet. This may be a missed opportunity at best, and a derailed defense or complaint at worst, just waiting to happen.

Dismissing the potential importance of emojis is akin to ignoring a document in an English language review as non-relevant, because it is in another language. Emoji – this resurgence of hieroglyphics – is that other language.

And it just may be the content that is the issue or potential proves or disproves the dispute.

Check out our whitepaper “The Impact of Emoji in Workplace Communications” for more on this topic.

Matt Mahon has 14-years’ experience with Ricoh supporting organizations with information governance and litigation support strategies including data remediation, litigation hold, preservation, collection, data processing, review, and production. As the National eDiscovery Sales Manager for Ricoh eDiscovery, Matt leads strategy and training for the sales team, and consults with clients, delivers CLE training, and is a frequent speaker and writer on eDiscovery issues. Matt earned his B.A. in Mathematics and Applied Sciences from UC San Diego and is a Certified as an eDiscovery Specialist and Information Governance Professional. Matt lectures widely on topics including IoT, the impact of emoji and social media in workplace communications, data governance, and eDiscovery.