Emoji Law 😅⚖️

0:00This is 99 % Invisible. I'm Roman Mars.

0:07Back in 2021, Chris Octor, a farmer in Saskatchewan, Canada, was hashing out a contract with a buyer interested in purchasing some of his flax. And they've dealt with each other before. They've formed contracts before. This is Eric Goldman, a law professor at Santa Clara University Law School. And he says that the farmer, Chris, and the buyer had a history. They would often discuss these grain orders over text. And so they're working on a new contract for this year's crop. And the buyer sends over a standard form that says, here's the offer for buying your flax. And the seller responds with the thumbs up emoji.

0:51Between discussing the contract in March and the delivery date in November, the price of flax increased. That's producer Talon Stradley. That year, there was a drought, and the flax harvest was smaller than many farmers expected. As the supply of flax went down, its price went up. This would have been a good thing for the buyer, who thought they locked in their contract earlier that year at the lower price. But when November rolled around, no flax was delivered. The misunderstanding goes back to that thumbs-up emoji. The buyer thought Chris was agreeing to the contract, but Chris, the seller, had a different perspective.

1:32The seller explaining the thumbs-up emoji says, I was just acknowledging receipt. I wasn't agreeing to the terms, just like we all have done many times using a thumbs-up emoji. In other words, the seller said he was acknowledging the contract while the buyer said he was signing it. The buyer sued the seller for breach of contract and damages, bringing the ambiguous nature of emojis into contact with the rigid world of contract law. Is a thumbs up emoji a legally binding signature? That's what one Saskatchewan... This case caught global attention and got people wondering what an emoji means in the eyes of the courts.

2:13A Saskatchewan judge thinks emojis are contractually binding. Last year, Justice Timothy Keene called the thumbs-up emoji a non-traditional but valid response. The court said that the thumbs-up, in this context, was a digital signature. The buyer was awarded roughly$62 ,000 in damages. So that single thumbs-up emoji was worth tens of thousands of dollars in that circumstance. Contract law is all about trying to wring out the nuances of language. and emojis are an increasingly big part of how we communicate. They appear in texts, social media posts, Slack messages, Zoom chats, emails, and when things go wrong, in courtrooms.

2:59It's not just this Canadian farmer getting into emoji trouble. Under former CEO Sam Bankman-Fried, the crypto firm FTX approved millions of dollars in expenses using emojis. In Australia, a Twitter user was sued for defamation when they tweeted a single zipper face emoji in response to a question about a lawyer's alleged misconduct. As more emojis end up in evidence, the courts will have to figure out how to handle them. Judges are running into emojis whether they want to or not, and the judges have to be prepared for it. But emojis can be tricky. Their meaning is constantly in flux, changing quickly in the hyper vortex of internet culture, which means they present some real challenges as they make their way through the legal system.

3:49Eric Goldman, our lawyer, has probably seen just about every emoji that is passed through the U.S. legal system. He set up keyword alerts in various databases for the terms emoji and emoticon. And I'm keeping a running log of those cases, now over a thousand opinions, that have used the term emoji or emoticon somewhere in their opinions. This database has given Eric some perspective on the growing problem that is emoji law. In 2016, he found at least 26 court opinions that referenced emojis. By 2023, that number was over 200. There is a freight train of emojis headed toward the legal system, and Eric wants us to get ahead of it.

4:34But right now, the courts are behind. Many of them don't even include emojis in their evidence transcriptions. They'll often cut and paste a chat log, and there will be emojis in that, and then the judges will take them out and just put in a bracket, emoji, without being specific even what emoji it was, but certainly without showing it to us. In other words, for some old school judges, emojis don't merit any consideration, which is wild because emojis can be central to how we understand the meaning of a message. I don't think they're different from words. I think they're the exact same thing as words.

5:08This is Adam Aleksic. He's a linguist and he researches Gen Z slang in particular. Adam was shocked when I told him that some judges simply ignore emojis. It's really terrible. They have such a critical function frequently of telling you the vibe of the sentence. This is part of what makes emojis unique to other written communication. Sure, sometimes they might be a literal replacement for a word, like sending a pizza emoji when someone asks what you want for dinner. But they can also provide what linguists call a tone tag. To indicate the tone of the sentence. So if I say, like, I had a great time today, thumbs up emoji.

5:48It could be a tone tag for older people saying, like, they had a great time. But it could be a tone tag for younger people saying, I'm joking. This is ironic. This is a sarcastic thumbs up. I did not have a great time. The meaning of emojis can vary depending on a user's age, location, profession, even their political ideology. These meanings are constantly shifting. From about 2010 to 2015, emojis were mostly on ironic online. So if you were laughing, you just send somebody the laughing, crying emoji. However, around like, I don't know, my inflection point is 2016, 2017, people started seeing like these traditional emojis as a little bit cringe and started moving to different ways to express laughter.

6:31So we started turning to the crying emoji. And at a certain point, that gets overused. And now Gen Z people are using the skull emoji. And so these emojis are rapidly evolving. And unless you're tapped into the chronically online space, you're going to miss out on the nuance there. In some cases, that nuance has to do with the meaning of emojis in different communities and subcultures. The goat emoji is used by sports fans to mean the greatest of all time. The infinity emoji is used to represent neurodiversity. The watermelon emoji is used to express support for Palestine. For the most part, these subcultural emojis are just a way for communities to connect over shared symbols.

7:12But they're not always harmless. Sometimes, the meaning of certain emojis can get pretty dark and even veer into criminal territory. Let me give you an example of an emoji that has slang usage. The crown emoji has very specific meaning in the sex trafficking context. It's basically used to signal the relationship between a pimp and a sex worker where the sex worker is either admitting to some subordinate relationship or is being offered to take on that subordinate relationship. The courts might be slow to get on board with emojis, but they're used to dealing with ambiguous encoded communications of other kinds.

7:57they've always had to consider complexities of human communication even offline, like the way things were said, who was saying it, and where. This is something that judges and the legal system deal with all the time. And frankly, they're really quite good at it. Juries will watch when a witness testifies about their facial expressions, their vocal inflections, their body language, and factor that into the trustworthiness of the speaker. As an example, when a bad guy gives you a compliment, you know they're not trying to be nice. It is a threat. Think Die Hard. It's a very nice suit, Mr. Takagi.

8:36To be ashamed to ruin it. So this happens every day. Go watch Law & Order or CSI or whatever. Like, this is happening all the time on the TV shows, too. And so emojis are just another piece of that. They're just another part of the overall package of communication that's being delivered between speakers. It's not unusual. That's just the way human communication goes. But for emojis, there is one key piece of technical knowledge that judges, lawyers and juries have to grasp. It's something that makes emojis fundamentally different from the spoken and written language the courts are used to. And that's the fact that sometimes the emoji that a person sends is different from the emoji that another person receives.

9:22Something as simple as an Apple phone sending an emoji to an Android phone could result in a different emoji design, and therefore, a different message. It is possible that the emoji depiction that the sender sees is different from the emoji depiction that the recipient sees. And it's possible, if not likely, that the sender or recipient don't know that they're seeing slightly different images. Whether it's Apple, Android, Meta, Slack, or X, each platform has their own unique emoji designs. Some are more detailed, some are quite simple, some are three-dimensional, some are flat, and sometimes they don't even show the same object.

10:05Take, for example, the infamous gun emoji. Different platforms show the gun emoji very differently. At first, many platforms depicted the pistol as a firearm, specifically a revolver. In the following years, the emoji kept popping up in courts as a threat. A man in France was sentenced to three months in jail after texting the gun emoji to his ex-girlfriend. In Virginia, a 12-year-old girl was charged with threatening her school after using the gun, knife, and bomb emojis in an Instagram post. It got to the point where a gun control organization launched a campaign to change the emoji's design.

10:43Apple changed their gun emoji in 2016, depicting it as a water gun instead. and many other companies did the same. But then, just last year, Elon Musk reverted X's water gun emoji back to a pistol. Now, some platforms show water guns and some show firearms and there's no clear way to know which version other people are seeing. Not even the direction of the pistol emoji is the same across platforms, making things complicated when the emoji shows up in court. Usually, it points to the left, but in some cases, it's rotated slightly, so it looks like it's pointing at the viewer. At least one platform has the gun emoji facing the opposite direction, to the right.

11:24Of course, the direction a gun is pointed is pretty important to the meaning of a message. Let's say, for instance, you have the following emojis. A crocodile, a pistol, and a cop. The gun is facing to the left. Looks like the cop is shooting the crocodile. But now, let's say you send this from one platform to another platform, and the other platform has the symbol for the gun emoji is facing the other way. Now it looks like the crocodile is shooting the police officer. Maybe, maybe you're actually advocating for shooting cops. Or at least advocating for crocodiles to shoot cops. The pistol is an especially chaotic example, and you'd be forgiven for thinking it's the Wild West when you send emojis across platforms.

12:05But there's actually an organization that's supposed to keep all emojis looking the same, at least in theory. It's called Unicode. Unicode is like a universal dictionary that computers use to display text properly. It works by assigning a unique ID number for every character you type. That ID is readable across all platforms and languages. It can get a little complicated, but what it boils down to is this. Unicode is what ensures the letter A on your computer shows up as an A on someone else's computer, even if they live on the other side of the world. Unicode started by standardizing letters, but 15 years ago, they moved into the emoji space.

12:48They assigned each emoji an ID made of a string of numbers and then provided a simple black and white design for reference. The idea was to create a coherent set of emojis that all platforms would recognize. The problem is that Unicode doesn't really have any power to enforce this standardization. There are no emoji inspectors, no emoji cops. Unicode simply provides a system that most companies agree to use, so all their devices play nice. And while Unicode might want to enforce the sameness of emojis across different platforms, there are a number of competing forces pushing companies to differentiate.

13:30The first is branding. A number of operating system vendors view emojis as a competitive differentiator. If they have slicker emojis, they think that's going to increase adoption for them. Another factor that Eric thinks is pushing companies to vary their design is copyright law, which requires that emojis not be too similar. A company's emoji is considered an original illustration. Nobody wants to open themselves up to a lawsuit by copying someone else's work. And so every platform tweaks its emoji designs. The differences between what is sent and what is received could effectively double the work of the courts.

14:09And while they're perfectly capable of interpreting emojis, they have to make sure that they're interpreting the right ones. And this is where Eric steps in. He trains lawyers and judges on all of these intricacies so that they can be prepared for future emoji cases before a bad decision is made. What I try to do when I do judicial trainings on emojis is I say emoji depictions should always come in at least pairs. What did the sender see and what did the recipient see? And you should not assume that they're the same thing. So for emojis to be effectively interpreted in courts, they have to clear multiple hurdles.

14:47First, the court has to actually recognize emojis as an important part of conversation and include them in the evidence. Then, they have to consider all the various contextual meanings of an emoji. Finally, they should keep in mind what emoji design was sent and what emoji design was received. Eric points out that the thumbs-up case with the Saskatchewan farmer is a good example of how courts should handle emojis. In this thumbs-up case, the court didn't just look at this one message. They looked at the text messages around the thumbs-up, where they discussed the contract. They also looked at past contracts that were approved in a similar way, with a brief, okay, or yep, sent over text.

15:31And so the court says, looking at the emoji in the context of the conversation and with the context of past dealings with each other, it looks like that thumbs up was an assent to the contract. But I think that the court's methodology, not just to look at the emoji in the abstract, but to put it in context, was exactly what we would hope the courts would do. And I think based on that, to me, it looked like the court got the right outcome.

16:00Human communication has always been messy. Every time you open your mouth or type out a message and try to convey your thoughts to someone else, there's a chance they'll misunderstand. And that's why we have judges, lawyers, and juries in the first place. Legal conflicts often involve competing points of view that are subjective and muddled and up for interpretation. That's even more true when people are talking across generational differences in new technologies. So remember, if you're texting about something illegal, toss in a few random emojis for good measure. Keep the courts on their toes.

16:50Coming up after the break, we'll talk with author Keith Houston about the origins of the poop emoji. That's after these ends.

17:10We're back with 99PI favorite author Keith Houston, who has a new book called Face with Tears of Joy, which comes out in July. The book explores the history of various emojis, including one of the most iconic, the poop emoji. Here's Keith. There is this anime called, or was this anime called Dr. Slump. And one of the characters was called Poop Boy, or Unshikun. And he was a poo, done by the main character, or the title character, Dr. Slump, Senbei Norimaki. He had some friends. His friends were manure boy, bird poop boy, old man poop, and soft serve ice cream boy, who the others mistook for poop.

17:49And so this character was quite popular. Also, apparently in Japanese, the term onshi kind of has connotations of sort of good luck, even though it literally means poop. And so, weirdly, or perhaps not, the notion of poop being in some way cute or lucky or just a good thing to have around made its way into this first emoji set. So what did this original poop emoji look like? The original poop emoji, like all of the other initial emoji, was tiny. It was something like, I think, 12 pixels by 12 pixels. And it just, it looks like a poop. It doesn't have eyes. It's not smiling. it's just a just a poop um of course the the engineers or designers who are working on these were really constrained by the technology of the time they were all monochrome all the phones at this point had black and white screens or lcd screens and yet they became popular they became this fundamentally useful part of japanese internet culture i've read a theory that japanese can be quite a formal language and i think some users felt that emoji gave them a kind of a way out or help them to express really complex sentiments that would otherwise be quite difficult.

19:01Not only that, even just entering text on a keyboard or a Japanese phone could be quite difficult. So again, emoji were a kind of a shortcut to expressing emotions or sentiments that were just fundamentally quite difficult or quite time consuming to express otherwise. And what this meant was that in the mid 2000s, when Google wanted to broaden its reach into Asia and Japan, it wanted to launch Gmail. And one particular product manager insisted that Emoji had to be part of this. He told his bosses, we can't launch Gmail in Japan without Emoji. And was he insisting on this because of the way Emoji just broadened the expression?

19:39Like, what do you attribute to his insistence that Emoji be part of any email? It seems like Emoji just felt like an integral part of electronic communication at that point. one of the Googlers on this, Kat Mamoy, he wrote that emails just felt kind of dry and boring if they didn't have emoji. There was something lacking. They had given something to written communication which hadn't existed previously. And also they just made it easier to express emotion. And I think it's quite telling that someone at Google, which is very data-driven, was able to express this thing. And then some of the engineers in the Gmail project did a bit of statistical analysis and find that the poop emoji that existed already was actually quite popular.

20:22It was relatively well used. And so, you know, he appealed both to, I think, the heart and to the heads of his bosses. And they said, OK, fine, we can have emoji and you can have the poop. The first step is you can have emoji. And the second step is you can have the poop emoji, which might not translate to, you know, a seriously minded company like Google necessarily. necessarily, was there some pushback about the poop emoji in particular? There was. I think there was just a thought that this is ridiculous. Why do we need to have an animated poop in our Gmail product? But again, you know, this appeal to the data won the day and the poop arrived.

21:03So you mentioned that this Google poop emoji was a pile of poo with flies around it. Can you talk a little bit about the evolution of the design of the poop emoji? there are basically there are two flavors i've got a terrible thing to say there are two flavors of poop emoji um the one which everyone will be most familiar with is the smiling poop emoji and the other one is just a faceless poop perhaps with flies perhaps not and basically this came down to which of two japanese mobile companies one followed the first one which was called jphone if i remember rightly had just a faceless had a sort of faceless this is just a poop icon.

21:41And the second one to introduce it was called KDDI. And they had a smiling poop emoji. And it's really interesting to try and follow the history of any one particular emoji back, because there are so many of them, and there are so many different potential inspirations for each one. But this one can be traced fairly clearly back. If you look at a poop emoji and it's got eyes, it's descended from KDDI. And if you look at it and it doesn't, it's descended from JPhone. Yeah. So talk about the popularity or the impact of the poop emoji since its adoption and widespread use on lots of different platforms.

22:17Well, this is really interesting. It's not popular and no one likes it, at least in the West. What happened was Google launched Gmail with their emoji and they did quite a responsible thing, which was it went to this organization called Unicode. It's just a private corporation headwaters in California. you. Google went to Unicode and say, we'd like to standardize this stuff. And it turned out Unicode were actually already looking at it. They had formed something called the Symbols Committee or Symbols Subcommittee. And within a few years, Unicode had standardized this. And what they did was they basically imported all the emoji that were in use in Japan by these different mobile operators.

22:57And they just kind of inherited the poop. They didn't think about it. It just came along with, you know, smiling faces and bento boxes and bullet trains and a poop. And so it went into, I think it was Unicode version 6, came out in 2010, and the poop was rubber stamped, so to speak, as an official emoji. But only four years later, there was a survey that found that the poop emoji was the 88th most popular emoji on Twitter. And then another report in about 2022, so just a few years ago, Emoji did this big thing called the US Emoji Trend Report, found that the poop emoji was the least popular emoji for basically every regeneration from gen z back down to boomers no one likes it but i think the telling thing is that i think it's become this kind of emblem of emoji what do you think about when you think about emoji maybe a smiley yellow face but that existed before you know that was an icon that was a concept that kind of merged into emoji yeah the poop emoji is just the poop emoji it exists in our heads because emoji exists and so you have patrick stewart voicing a poop emoji in the emoji movie you know I can buy a crocheted poop emoji squishy toy or like a plush emoji or a 3D printed gold emoji.

24:13Any number of things that are shaped like the poop emoji. It seems to have transcended emoji. I don't know. It's done something. It's managed to achieve escape velocity. God, that's another terrible metaphor in the context of a poop. But despite the fact that the poop emoji has achieved, as you would say, escape velocity, it hasn't been without controversy right like there was an incident in 2016 or 2017 that you've actually written about right so emoji at that point were uh sort of six or seven years old or they were officially six or seven years old and this organization the unicode consortium which manages emoji on our behalf they they were undergoing or experiencing a few sort of internal ructions where some members who are very serious and they're interested in we will encode this ancient language will improve support for this sort of punctuation.

25:06They were getting really hacked off with how much attention emoji was being given within the consortium. But I think also they were almost angry because it was getting so much attention outside of the consortium. And so there was one particular year where, you know, the yearly set of emoji for next year's next year's standard being debated. And one of them was a frowning poo or poo with sad face. and one particular Unicode contributor wrote a comment he said this should embarrass absolutely everyone who votes yes and such an excrescence will we have a crying pile of poo next pile of poo with tongue sticking out pile of poo with question marks for eyes pile of poo with karaoke mic will we have to encode a neutral faceless pile of poo he was just absolutely incandescent that the Unicode technical committee in any way should have to care about this this whole era of this this unrest was called Emojageddon.

25:59But we came out of it on the other side. And one of the funny things is that when a character goes into Unicode, there's no way to take it out. So the poo is in there. It doesn't matter how much you hate it. So it may be the least popular emoji ever in the long history, long future history of emoji, but we will never be truly rid of it. That was Keith Houston. His book, Face with Tears of Joy, A Natural History of Emoji, will be out in July. and all Keith Houston books are must-haves for 99PI fans. So pre-order it now.

26:3699 % Invisible was produced this week by Talon Stradley and edited by Delaney Hall, mixed by Martine Gonzalez, music by Swan Real, fact-checking by Graham Heysha. Kathy Tu is our executive producer. Kirk Colstead is the digital director. The rest of the team includes Chris Berube, Jason DeLeon, Emmett Fitzgerald, Christopher Johnson, Vivian Leigh, Lashma Dawn, Kelly Prime, Joe Rosenberg, Jacob Medina Gleason, and me, Roman Mars. The 99 % Invisible logo was created by Stephan Lawrence. We are part of the SiriusXM podcast family, now headquartered six blocks north, in the Pandora Building, in beautiful, uptown, Oakland, California.

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