Emoji and the Law

Hey, it’s Zack. Before we get started, I just want to let you know that we touch on some adult topics in this episode. If you’re listening with kids, you might want to review first. Alright, on with the show.

*      *      *

Sometimes, we interview really interesting people for this podcast who just don’t end up making it into an episode. Like this guy.

GOLDMAN: I love talking about emojis, so we’ve got lots to talk about.

That’s Eric Goldman.

GOLDMAN: I am a professor of law. I’m associate dean for research, and I’m co-director of the High Tech Law Institute. And that’s all at Santa Clara University School of Law.

A couple weeks ago, we did an episode on emoji — you know, smiley faces, hearts, fire. While I was doing research for that episode, I came across an incredible 2018 paper by Goldman, titled “Emojis and the Law.” The legal side of emoji didn’t quite fit in with the rest of our episode. But today, we’re going to give Goldman the stage. Because, as it turns out, lawyers and judges have a lot to say on the subject.

GOLDMAN: The courts will play a role in determining the meaning of emoji. That outcome’s inevitable. The question is whether they’re doing it fairly.

For the Freakonomics Radio Network, this is The Economics of Everyday Things. I’m Zachary Crockett. Today, an extra episode for you on the unexpected legal side of emoji.

*      *      *

When I talked to Eric Goldman, he had just gotten back from a trip to China.

GOLDMAN: Apparently I’m big in China. I did a five city speaking tour.

He was there to present on something that’s been causing a lot of trouble for Chinese merchants selling products on Amazon. And, in a way, it tied back to a question I had about emoji, when we were working on our episode.

In it, we talked about how a non-profit organization called the Unicode Consortium is responsible for approving the emoji that are on our phones. They decide that we need an icon of, say, a shovel, then publish a recommendation for what that shovel should look like.

And then, the companies that make mobile operating systems, like Apple and Google, create their own designs for the shovel emoji. Generally, these companies protect their designs with copyrights.

GOLDMAN: Apple has hundreds, if not thousands, of copyrights in individual emoji depictions. They’ve been successful at convincing the Copyright Office to uphold the request.

There are also open-source emoji sets from places like OpenMoji, that are free for commercial use.

If you go on Amazon, you’ll find hundreds of emoji-themed products for sale, from Christmas tree ornaments to earrings. Most of them are based on those open-source emoji, so it’s completely legal for them to sell goods with these designs. But, as Goldman warned the merchants in China, a threat is lurking in the shadows. Because, as it turns out, there’s a company called Emoji Co. that has trademarks on the dictionary word “emoji.”

GOLDMAN: Emoji Co. is a licensing company that has obtained trademark registrations for the word “emoji” in thousands of different product areas — things like pens, and mugs, and T-shirts, even sex toys. They do an Amazon search for the word emoji. And then any product that references the word “emoji,” they just sue them.

CROCKETT: So, if I’m selling like a coffee mug that uses an open-source poop emoji on it that doesn’t infringe on any trademark, EmojiCo can still send me a cease and desist for simply for using the word “emoji” in the description of my product?

GOLDMAN: So the short answer is yes, but it’s actually worse. The way it works is that Emoji Co. will file a lawsuit with hundreds of defendants listed in the lawsuit. And then they go to the court. They explain that they think there’s been trademark infringement by these online merchants. The court will issue a temporary restraining order that is designed to keep everything status quo until the court can take a closer look at the case. But by keeping things at status quo, online marketplaces like Amazon will freeze a merchant’s account and they will freeze the merchant’s cash. And they’ll say, “You’re out of business until the court says otherwise, or the trademark owner says otherwise.” Emoji Co. can then say, “If you wanna have your business back, you can buy it back from us. Write us a check.” And they’ve done that hundreds, if not thousands, of times.

We reached out to EmojiCo for comment but they didn’t get back to us.

GOLDMAN: It’s like the old protection rackets that we would joke about with the mob, you know? “It’d be a shame if anything happened to your business, but you can pay me so that nothing bad will happen.”

CROCKETT: Could EmojiCo technically even go after a big company like Apple for using the word “emoji”?

GOLDMAN: They wouldn’t likely go after a big player like Apple. Apple would fight back. They go after people who can’t fight back.

For Goldman, this is just an anecdote. As a scholar of Internet and tech law, he’s taken up a special interest in how new forms of communication, including emoji, are interpreted by the courts.

GOLDMAN: I have alerts set up in various electronic databases that notify me every time a court uses the word “emoji” or “emoticon.” And every time that I see a case like that, then I add it to my census, which is well over 1,000 cases now in the U.S. This year, the number will be over 300. Almost every case now where you’ve got emails or text messages or Slack messages are going to have emojis in them, that’s just now ordinary standard procedure for most litigators.

As a form of communication, emoji aren’t so simple. Sometimes, we use them as substitutes for words.

GOLDMAN: I use, for example, the thumbs up emoji to signal “okay” all the time. So if someone sends me an email and they said, I’m going to follow up with you in the following way, I’ll send back a thumbs up emoji. That’s the same as saying, “Got it,” or, “Okay.” I’m just substituting the emoji for that.

Other times, we use them to emphasize the things we write, or to convey extra meaning.

GOLDMAN: I might say something like, “I love you,” and then add a heart or a kiss or the emoji with the three hearts that shows I’m feeling good. The text already said what it needed to say, but the emoji just says, “And I really mean it.”

In many cases, emoji take on a life of their own. For instance, a skull emoji is often used to communicate laughter, rather than death. People have all kinds of ways of communicating with emoji, and not every reader can understand what a specific icon means in a particular context.

GOLDMAN: Most of the time, a particular communication format or method really only serves one purpose. Here, the emojis are serving a variety of purposes. It might even be the exact same symbol, but performing different functions at the same time. And an interpreter, including a court, needs to be aware of the different interpretive functions and then to make sure that they’re applying them properly. 

This is complicated a bit more by the fact that each platform has their own designs for emoji.

GOLDMAN: If I type out the characters I-L-O-V-E-U, the person who gets the message is going to see those characters and they’re going to recognize them the same. That’s not necessarily the case with emojis. They can look different on different platforms.

CROCKETT: So, if you send, like, a cringe-face emoji on an iPhone, it’ll look a bit different on a Samsung device.

GOLDMAN: Correct. The sender sees one face and the recipient sees a face with slightly different details — that’s a recipe for misunderstanding.

So, how does this all play out in the courts? Well, in one sense, this isn’t unlike any other form of communication. Hand gestures, facial expressions, body language, and slang can all be ambiguous. And judges already have really good ways of interpreting those things.

GOLDMAN: U.S. courts are really very capable of interpreting communication in order to define reasonable meaning associated with it. So, when it comes to understanding whether or not a person wearing a particular clothing with a color in it is part of a gang or not, courts are pretty good at figuring out the differences between someone just randomly picking something out of their wardrobe and someone signaling that they were a member of a gang by deliberately invoking the colors. Because courts are so good at interpreting non-textual communication, emojis actually work really well for them. 

Even so, emoji are showing up in more court cases than ever before. They’re pulled from text chains and chat logs and displayed on big charts in front of juries. And sometimes, they even play a pivotal role in the verdict.

That’s coming up.

*      *      *

When he looks at his database of court opinions that reference emoji, Eric Goldman says one type of case stands out.

GOLDMAN: Historically, the number one category of places emoji showed up in court opinions related to sexual predation cases. There was a chat log or a message transcript of conversations between these individuals, all in the context of seeking sex. 

One emoji in particular tends to take center stage.

GOLDMAN: No one ever uses the eggplant emoji as a vegetable. If you look at Unicode’s representative glyph, it’s basically in an oval shape, kind of like an hourglass type of shape that they provide as the outline for that. And someone, somewhere along the way, decided to depict that more in the Japanese eggplant style, which is basically long and thin. So they took Unicode’s representative glyph and they picked a different outline of an emoji. It looks like a penis. It has come up a couple of dozen times in the case census I’ve maintained. And people are using the eggplant as a metaphor for the general category of sex. It’s an easy conclusion for the courts. They’re very good at understanding that an eggplant is not just an eggplant.

In most instances, emoji are just just passing reference in the evidence. But Goldman also told me about a case in which the emoji itself was the smoking gun.

GOLDMAN: The setup is a woman complains that she was sexually harassed in her workplace. And as part of that, she includes a transcript of a chat log where there were some indicators that confirmed her story of sexual harassment, including the heart eyes emoji. And the defendant said, “I didn’t sexually harass her.” We’ve got a classic he-said-she-said story. We have to figure out who we believe. The defendant said, “I want to see the device where this transcript allegedly took place.” The device is unavailable. She says, “I don’t have it anymore.” But she indicates that it was on a older version of an iPhone. 

The defense team did some research and realized that the version of the heart-eyes emoji used in the text transcript provided by this woman couldn’t have possibly been typed on an old iPhone model.

GOLDMAN: What happened is that over time, Apple has evolved the depiction of the heart eyes emoji so that it looks different on different variations of the iPhone. Now, the differences are not significant. The eyes got a little bit bigger and the smile got a bit bigger. But it was enough to show that if she had taken that transcript screenshot on the device she claimed, she could not have seen that emoji because the version that she was using was only visible on a later version of Apple’s operating system.

In the end, the court ruled that the heart eyes emoji in the provided text transcript was fabricated. The woman lost the case.

GOLDMAN: Essentially what the defendant did is what I call emoji forensics. They were looking at the depiction of emoji as a way of carbon dating the item and showing that her story could not possibly be true.

Sometimes, emoji even find themselves at the center of a security fraud lawsuit.

GOLDMAN: There’s an entire genre of investing that’s sometimes called meme stocks. These are situations where the stock price doesn’t necessarily reflect the underlying economic value. In that community, there’s essentially a form of pump and dump that takes place, where someone buys stock, hypes it, gets people to buy the stock as well, drives up the price, and then dumps the stock, leaving the later comers holding the bag.

In 2022, the activist investor Ryan Cohen took a big stake in the ailing retailer Bed Bath & Beyond. And he shared a social media post that included an emoji called the ‘full moon face.’

GOLDMAN: This is a long tail emoji. This is something that doesn’t get used very often. But in the meme stock community, the moon face emoji might be a coded reference to suggest that this stock is going to the moon. So some stockholders in Bed Bath & Beyond challenged Ryan Cohen for including the moon-faced emoji in his message, saying essentially he was hyping up the stock, telling everyone to buy it so that he could liquidate his position and make a profit. And the court said, “That’s a plausible interpretation of why he included the moon face emoji.”

Sometimes, even the most innocent emoji ends up at the center of a legal dispute. Like the thumbs up.

GOLDMAN: I love the thumbs up emoji. It’s one of my most commonly used emojis.

CROCKETT: Yeah, it’s the classic dad emoji.

GOLDMAN: Sadly, I live up to the stereotype.

Goldman says the thumbs up is more contentious than it seems.

GOLDMAN: The thumbs up emoji has come up in a number of litigated cases. The last time I counted, it was over 50. And the essential gist of the legal dispute is whether or not a thumbs- up emoji means that I acknowledge your message or I agree with your message. 

Take, for instance, a case that played out in Canada, when a farmer offered to sell around 190,000 pounds of flax to a grain buyer.

GOLDMAN: The buyer sent over a contract via text message and said, “I’d like to buy your flax.” The seller responded with a thumbs up emoji. As it turned out, that particular year flax crop didn’t go the way they wanted it to. The seller says, “I’m not going to sell you my flax.” The buyer says, “We have a contract. You gave me the thumbs up emoji. And I interpret that as an assent to my offer.” Those particular parties had a history of dealing with each other that suggested that the thumbs up emoji in their relationship would have been an assent and not just acknowledgement. And so, the court used standard contract interpretive principles to look at the conversation they had, as well as the dealing that they had in the past to say, “I’m pretty confident that this was not acknowledgement, this is an acceptance.” And the court held that it was in fact a binding contract. And as a result, the seller owed tens of thousands of dollars of damages for not performing under that contract.

But the courts don’t always accept a thumps up emoji as an indication of agreement.

GOLDMAN: There’s another case here in the U.S. where the parents of a child who are now separated were discussing whether the child should live with one parent in a foreign country or here in the U.S. with the other parent. And in those conversations, one of the parents gave the thumbs up emoji, and the other parent said that was an assent to allowing me to have the child stay with me as opposed to the other parent. And the court said, no, I don’t think so. In that context, that was an acknowledgement. The parent was simply signaling that they were acknowledging the message, but they were not agreeing to transfer custody of their child to another country by the thumbs up emoji. And so we have two different outcomes with the thumbs-up emoji, and I think both of those courts were right. In the case of something like child custody, the stakes at issue, it makes total sense that the courts would reach different outcomes.

CROCKETT: I wonder, hypothetically, if those parents were in person and one of the parents gave a physical thumbs up and it was, like, caught on a ring video camera or something, how that would play out differently.

GOLDMAN: It might very well reach a different outcome. We would look at the body language, the facial expressions, the sincerity of the delivery of the hand gesture, and we could try to divine what that person was saying when they did the thumbs up. With emojis, we’ve stripped away the facial expressions, we stripped away the body language, we stripped away the sincerity of the hand gesture. All we get is a single symbol, and as a result, the courts are going to have to rely on other contextual clues to interpret it.

Emoji won’t be the last thing to shake up that interpretive process.

GOLDMAN: We’re already evolving our communication methods to other forms of non-textual communication. There’s been a proliferation of variations of emojis, such as me-mojis or animojis. And of course, people are also using memes and GIFs in some cases for the same basic purpose. There’s going to be additional iterations of ways that we can express ourselves online that are going to eventually eclipse emojis, in my mind.

CROCKETT: Has researching all of this made you think twice about sending an emoji now?

GOLDMAN: Yeah, no doubt about that. Honestly, I think that’s a healthy thing. I encourage people to use emojis: use them smartly, recognize that, like the words we pick, like the hand gestures we make and the facial expressions we make, they all have legal consequence.

GOLDMAN: But don’t allow that to inhibit the beauty of human communication. It’s such a great way for us to talk to each other.

CROCKETT: So you’re sticking with a thumbs up emoji.

GOLDMAN: Yeah, my kids will laugh at me every single time.

For The Economics of Everyday Things, I’m Zachary Crockett.

*      *      *

This episode was produced by me and Sarah Lilley, and mixed by Jeremy Johnston. We had help from Daniel Moritz-Rabson.

CROCKETT: We don’t have to talk about these cases in excruciating detail or anything but —

GOLDMAN: I’m sorry, you’re talking to a law professor, so excruciating detail kind of comes with the territory.