Eric Goldman, Professor at Santa Clara University School of Law, Director of the law school’s High Tech Law Institute, and well known blogger (Technology and Marketing Law Blog), considers the problematic role played by emojis in modern day discourse, in his paper, “Emojis and the Law.” [Download pdf here]. The article is “forthcoming” in Volume 83 of the Washington Law Review, but Eric has made available his latest draft.
Abstract
Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail.
Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them.
One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized through the Unicode Consortium. These differences can unexpectedly create misunderstandings.
The diversity of emoji depictions isn’t technologically required, nor does it necessarily benefit users. Instead, it likely reflects platforms’ concerns about intellectual property protection for emojis, which forces them to introduce unnecessary variations that create avoidable confusion. Thus, intellectual property may be hindering our ability to communicate with each other. The Article will discuss how to limit this unwanted consequence.