The smiley or frowny face you absentmindedly insert at the end of an email conversation or text message is giving the legal profession a new puzzle to solve. The first emoticon was born in 1982, fruit of the imaginary brain of Professor Scott Fahlman. Thirty-four years later, they’re an integral part of our digital life, as they convey the facial expressions that are missing from online communications like text messages, email and social media posts.
Since emoticons have become an integral part of our online communication, it isn’t a surprise that these symbols have made their entry in court rooms and been used as evidence in recent cases. Juries have been instructed to pay attention to the use of emojis and emoticons to fully understand the meaning of a conversation. A smiley face might not suggest that the person was joking, rather that they were amused by an opportunity to harass or threaten someone else. Emojis and emoticons are often misunderstood and misinterpreted, as not everyone uses these symbols in the same fashion. These same symbols also change appearances, shapes and forms when traveling through different platforms, such as text messaging or email applications. Someone could valuably argue that their look is misleading, and couldn’t be taken seriously.
What happens to emojis and emoticons in the digital world? What transformation do they go through between the moment data gets forensically collected and the time it gets produced to the adversarial party?
There are currently 1,624 emoticons in the Unicode standard. Emoticons have been standardized to work across all major computer systems. What this means, is that emojis and emoticons have their own code points, which are basically series of numerical values. What we see as a smiley face translates to a bit sequence in the background. Emojis and emoticons intrinsically remain what they are despite taking a slightly different appearance when viewed inside a browser, or emailed via software like Outlook or a web-based email platform like Gmail. In the digital world of 1s and 0s, emojis and emoticons have their special place, and a smiley face cannot be construed as something else.
Emojis and emoticons constitute discoverable evidence if they are relevant to a particular legal matter. The way they’re understood in the digital universe is simple; the way they’re interpreted by human beings pleading their case is an entirely different story. Like slang words and expressions, not everyone uses the same words in the same way. It’s up to the attorneys presenting their cases to clarify that. The latest trend certainly shows that they cannot be ignored, and will most certainly become more and more used as evidence in court.