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Emojis, Memes and the Law

April 18, 2022

Alexandra Boelsterli

Who would have thought that a zipper-mouth emoji would be sufficient proof of a defamatory statement tweeted all by itself? In a 2020 case between two Sydney, Australian lawyers a judge considered just that. Referencing an online website, Emojipedia, the judge was satisfied that, in the specific circumstances of that case, an “ordinary reasonable social media reader” seeing ???? without any additional words or graphics would make averse assumptions about the Plaintiff.

The legal field hasn’t always been known for its ability to adapt quickly to technology. One of the latest challenges it faces is that in an increasingly digital world, our ways of communicating are changing drastically. Hence, “emoji law” is now a thing! Our interpersonal relationships aren’t just built on the written word and oral communication. Rather, much of our communication is nonverbal. This isn’t a new consideration; it has been said for years that nonverbal communication makes up 70-90% of our interactions (Mehrabian 1971; Voss 2021).

As new non-verbal forms of communication are established, the meaning behind those communications changes rapidly and varies from group to group. The generally understood meaning of a nonverbal cue might not be the most logical interpretation of it. If you’ve received a skull emoji as a response to something you’ve said, don’t fret—they’re not wishing you dead or expressing a desire to celebrate Halloween—rather, among possible interpretations, it could mean that they’ve found what you’ve said to be especially funny. If a colleague has sent you an image of Kermit the Frog sipping on Lipton tea? Well, that’s none of my business. Nonverbal cues, particularly in a digital space, often depend on years of context and understanding that couldn’t possibly be known at first glance.

It’s easy to see how this increasing use of rapidly changing nonverbal communication might pose a problem for many legal professionals, who use words and facts in order to make their case. An already existing problem was exacerbated in 2020 as COVID-19 became a reality within Canada, forcing courts to turn to Zoom in order to resolve legal disputes in a world of social distancing. Suddenly nonverbal actions, expressions, gestures and behaviours became much more apparent and could have more significance to the finding of facts in a case. As a result, there is a growing demand for an evidence-based, clearer understanding of the revelations and limitations of unspoken communication.

NONVERBAL EVIDENCE IN COURT & NEGOTIATIONS: AN INTRODUCTION, an innovative new Professional LLM course taught by Professor Elizabeth Kirley, calls on interdisciplinary research in advocacy, linguistics, behavioural science, and dispute resolution to better understand messaging through our movements, treatment of spacing, facial expressions, voice quality, haptic behaviour, stance, and choice of cultural artifacts.

With a theoretical grounding in Mehrabian, Voss and Denault, the course will teach students to apply what they have learned to the law of emoji, memes and social media platforms such as TikTok. This 3-credit course is ideal for those interested in, or studying in the areas of, Criminal Law & Procedure, Common Law or Dispute Resolution, or for those looking to take an informative and timely elective.

Those seeking further cases and background on non-verbal evidence can check out, Elizabeth Kirley and Marilyn McMahon, “The Emoji Factor: humanizing the emerging law of digital speech,” 85 Tenn. L. R. vol 2 (Winter 2018); Vincent Denault, “Misconceptions about nonverbal cues to deception: a Covert Threat to the Justice System?” Front. Psychol., (2 Nov. 2020); and Natasha Miller, “What does the Zipper Face emoji mean: Burrows v Houda [2020] NSWDC 485,” Mondaq (3 September 2020).