20 Headnotes l D allas B ar A s s o c iatio n A pr il 2019 Do You Speak Emoji?

District of Michigan determined that uses of emojis as evidence came dur- used by the plaintiffs in emails and BY CAROL PAYNE AND TERAH MOXLEY an emoticon—a “-D,” which the court ing a 2015 trial involving Silk Road, self-assessments as evidence that the It all started with a . Throw in a viewed as a wide open-mouth smile— an online black market. In that case, plaintiffs did not subjectively believe , , , , , and a and two would- “did not materially alter the meaning the federal district judge presiding over their working conditions were abusive. be renters in Tel Aviv found themselves of a text message” included in an affi- the trial sustained an objection by the So, what does all this mean? For on the wrong side of a judgment in davit in support of a search warrant. defense after the prosecutor read text one thing, employers should have favor of a landlord who took a vacant Conversely, in a 2014 opinion from messages without mentioning smiley- strong electronic communications apartment off the market based on a Michigan appellate court, a similar face emojis contained in the messages. policies that explicitly cover symbols enthusiastic text messages he received emoticon—“:P”—sank a defamation The judge instructed the jury that it like emojis and emoticons (and even from the prospective tenants. After the case brought by a public official. In should take note of any such symbols GIFs, hashtags, and memes). Second, emoji-loving couple flaked on renting that case, the public official sued sev- in the messages, explaining “that is litigators should carefully consider the the apartment, the landlord sued and eral users of an online message board part of the evidence of the document.” evidentiary role emojis and emoti- recovered reliance damages after the after a user posted a comment that In the employment law context, cons might play as they evaluate the judge determined that the symbols con- appeared to accuse the official of cor- emoticons have been successfully used strengths and weaknesses of their cases. veyed great optimism and misled the ruption. The court concluded that the by employers to win summary judgment One significant challenge—what landlord into thinking everything was emoticon, a face with its tongue stick- and by employees to survive summary does a particular emoji mean? We took in order regarding the couple renting ing out, denoted a joke or sarcasm, judgment. In 2014, a plaintiff asserting a poll of our colleagues, asking them the apartment. See Yaniv Dahan v. Nir meaning the comment on the message an FMLA retaliation claim survived what they thought this emoji means— Chaim Sacharoff, File No. 30823-08-16 board “on its face cannot be taken seri- summary judgment in a New Jersey . Though dubbed the “unamused Small Claims (Herzliya), Nevo ously as asserting a fact” and could not case by relying on smiley-face emoti- face” by Emojipedia, our office poll Database (Isr.) (2017). reasonably be viewed as defamatory. cons in an email exchange between came up with a variety of answers, Over 10 billion emojis are sent each Two practice areas that have seen HR and the plaintiff’s skip-level super- including exhaustion, disagreement, day. As emojis become ubiquitous in emojis and emoticons used as evidence visor. In the email, the two discussed annoyance, disappointment, sadness, everyday communications, it should with increasing frequency are employ- the plaintiff’s termination, and the and skepticism. Couple this with the come as no surprise that emojis (and ment law and criminal law. On the court concluded that a reasonable jury fact that different operating platforms their more antiquated cousins, emoti- criminal side, in what Pittsburgh pros- could find that the emoticons in the sometimes display emojis differently, it cons) are popping up with more fre- ecutors called a case of “emoji-cide,” email were evidence that the employer can be a real challenge to establish the quency in lawsuits and criminal cases. a text message with a trio of emojis was happy to be able to terminate the original, true intent of a specific sym- However, courts differ in the ways they depicting a man running, an explo- plaintiff because her FMLA leave was bol. So, emoji with caution. HN view emojis—as important or irrele- sion, and a gun helped police identify inconvenient. On the flip side, in sev- vant. the sender of the message as a potential eral sexual harassment cases, employers Carol Payne is a member of, and Terah Moxley is a partner, at Estes For example, in a 2015 case, the suspect instead of a victim. have prevailed on summary judgment Thorne & Carr PLLC. They can be reached atc payne@estesthorne United States Court for the Eastern Also, one of the more high-profile by pointing to smiley-face emoticons carr.com and [email protected], respectively.

Carol Payne Terah Moxley Click to view bio. Click to view bio.