In 2015, at the trial of Ross Ulbricht, lawyers fought over evidence rules surrounding the use of emojis. Ulbricht’s lawyersargued that the prosecutors had omitted critical evidence from their transcriptions of his online chats — specifically, they left out his emojis. Fast forward six (6) years, and on the upswing of a global pandemic, in Rossbach v. Montefiore Medical the Southern District Court of New York admitted emoji evidence, only to discover that the evidence was completely fabricated.
Rossbach worked at Montefiore Medical Center where she claimed that her supervisor had sexually harassed her. In evidence, Rossbach admitted certain text messages, including a heart-eyes emoji from her supervisor and various sexually harassing messages. The last line is the court’s decision was this: “This image is a fabrication.”
Rossbach claimed that she had received the text messages on her iPhone 5,but the Court quickly noted that the version of the heart-eyes emoji used was only available on iOS13 or later. The iPhone 5, specifically, could not run anything higher than iOS10.
The number of reported cases having used emojis as evidence in the United States increased from 33 in 2017 to 53 in 2018, and in 2019, it was at nearly 80. To date, there is not a single court guideline on how to deal with this type of evidence — but this shouldn’t come as a surprise, as we are still attempting to navigate the admissibility of voice and evidence, in 2021.
In international litigation, which has relied on emoji evidence, an Israeli small claims dispute between a landlord and prospective new tenant– in which the landlord successfully sued for damages based at least partially on emojis in the prospective tenants’ text messages – saw a judge agree that the emojis indicated an intent to rent the landlord’s apartment. The judge found that the couple had “acted in bad faith” by then backing out, after the landlord had taken down the apartment listing.
Today there are more than 2,823 emojis set by the Unicode Consortium, ranging from activities to food and drink, to facial expressions. One of the largest points of contention for emojis in court is that they appear differently on varying platforms, depending on your device. Although the Unicode Consortium sets the standard for emojis, software makers such as Apple and Google, “then design versions for their platforms, opening up a path for inconsistencies and miscommunication.”
So when does an illustrated character become an expression of emotion, intent, or proof of violation of a prohibited ground under human rights legislation? And what happens when the use of emojis in relationships are abused? Like all legal answers – the response is that, it depends. As in the discovery process, attention to detail and evidence scrutiny are vital. In document production, it is best to take note of the manner in which evidence is being processed – and on what device – to effectively ensure that the emojis you seek to rely on, are in fact – helpful and persuasive.