26 COMMENTATOR SPRING 2018

If it looks like a duck: Emojis, Emoticons and Ambiguity By Ronald H. Kauffman, Esq. Miami

“I got an email lar is the aptly named “Squared CJK Paradoxically for an article on emo- once from an ex- Unified Ideograph-6709” .8 ji ambiguity, they are increasing in girlfriend. It was Emojis should not be confused with use because they help you to better completely innocu- the much older emoticons.9 “Emoti- express and be understood in the digi- ous, but she signed cons,” a blend of the words “emo- tal world.17 Emojis add human emo- it with a “wink.” tion” and “icon,” are facial expres- tion into electronic communications, A semicolon and sions made from keyboard characters allowing us to write and interpret a right parenthe- you tilt your head to the left to read. meanings beyond the actual words sis. ;) I got into a The most common emoticons include written.18 R. KAUFFMAN six-hour argument “Wink” ;) “Frown” :-( “Face with Stuck- [with my wife] over this semicolon. out Tongue” :p and “Surprise” :o.10 Contract Interpretation Had it been a regular colon, two eyes Kaomoji, which is Japanese for and Ambiguity open :) there’s no argument there. “face character,” is an emoticon varia- Emojis may revive the old saying “a Wink? ;) All of a sudden: ‘you’re sleep- tion: They are bigger, more compli- 1 picture is worth a thousand words,” ing with her, aren’t you?’” cated and do not require you to move but understanding them can be tricky. Emojis and emoticons are popping your head to read them. Popular kao- Because disputes can be won or lost up in courts everywhere, and people moji expressions are: “whatever” ¯\_( deciphering terms in an agreement, are landing in hot water.2 They can’t ツ)_/¯, “doubt” (→_→), “angry” (>_<), it is helpful to review the basic rules simply be overlooked by courts, be- “embarrassed” (#^.^#), and “confused” governing contract interpretation. cause emojis and emoticons say a lot 11 ¯\(°_o)/¯. Marital agreements are interpreted about the sender’s intent. Ignoring Bitmoji is a phone app that allows like any other contract.19 Basic in- them in a document would be like you to create a surprisingly accurate terpretation begins with the plain calling a witness to the stand and cartoon of yourself to add in emails language of the contract, because the ignoring his or her facial expressions and texts. Bitmojis are much larger 3 contract language is the best evidence and body language. than emojis, and the extra size gives of the parties’ intent at the time they While judges have always had to in- Bitmojis a lot more personality and signed the contract.20 terpret ambiguous language, emojis emotion to add to messages and on Courts are not supposed to rewrite offer something new. Emojis fail the social media.12 terms that are “clear and unambigu- “duck test:” If it looks like a duck, and Today, roughly 70 percent of the ous.”21 As a general rule, evidence quacks like a duck, then it is prob- public uses some type of social me- outside the contract language, which 4 Emoji meanings can be 13 ably a duck. dia. Social media has changed many is known as parol evidence, is only so puzzling that a “duck” emoji may of the ways in which we communi- allowed to be considered when the mean anything but a duck. This ar- cate. For one thing, social media has contract language contains an am- ticle is a primer on emojis, emoticons increased our use of emojis. One re- biguity.22 and ambiguity. port found that more than 92 percent Ironically, the “parol evidence rule” of people use emojis on social media.14 is itself ambiguous. The parol evi- Emojis and Emoticons Emojis have spread to the business dence rule is not a rule, or found in Originating in Japan in 1998, emo- world, where nearly half of workers the Evidence Code, but is substantive jis are small digital images used to add emojis to professional commu- law. The parol evidence rule states express an idea or an emotion in nications, and companies use them that evidence of a prior or contem- electronic communications.5 The term to increase sales and brand aware- poraneous oral agreement is inad- emoji is Japanese for “picture charac- ness.15 Taco Bell cooked up a highly missible to vary or contradict the ter.” Picture (pronounced “eh”), and publicized petition to introduce the unambiguous language of a valid character (pronounced moh-jee).6 The “Taco” emoji, and you can order your contract.23 most popular emoji today is “Face next Domino’s with the “Slice of Anyone seeking to introduce extrin- With Tears of Joy” .7 The least popu- Pizza” emoji.16- sic evidence, which is any evidence SPRING 2018 COMMENTATOR 27 outside a fully integrated contract, Ross Ulbricht was charged with run- emoticon.38 After a mountain of salt must first establish that a contract ning an online, black market website rock was stolen from city storage, a is ambiguous.24 A contract is ambigu- that traded in drugs and murder. His worker named Gus argued he was ous when its language is reasonably pseudonym was: The Dread Pirate falsely accused of the theft in an on- susceptible to more than one inter- Roberts. line message board when a commen- pretation.25 During the Silk Road trial, a New tator wrote: “because Gus needs more Florida courts distinguish between York federal judge had to rule on how tires to sell to get more money for his latent and patent ambiguities. A la- to publish emoticons in evidence to a pockets :P.” The court found that use tent ambiguity is when the language jury. Ulbricht’s attorney argued that of the :P emoticon made it clear the in a contract is clear, but some extrin- chats, posts and emails in evidence commenter was joking. sic fact creates a need for interpreta- should be shown to jurors, instead An Israeli court awarded damages tion between two possible meanings.26 of merely read, because emoticons based on emojis. A prospective tenant In other words, a latent ambiguity is changed the messages’ meaning. sent a landlord a text in response when an agreement is clear, but does The judge agreed, ruling: “[t]he jury to an ad stating: “Good morning not specify the rights or duties of the should note the punctuation and we want the house parties. emoticons.”34 just need to go over the details. . .” A patent ambiguity is a glaring one, A Montana federal court found The landlord removed his ad, then and it is obvious from the face of the that a “Smiley” emoticon :) converted the tenant disappeared. The court contract. Patent ambiguities usually an email into a joke, and the email awarded the landlord 8,000 shekels arises from the use of defective, ob- meant the opposite of what it said. after it found: “Although this message scure or insensible language, or from A defendant claimed his attorney did not constitute a binding contract two or more instances of language in violated the attorney-client privilege . . . [it] naturally led to the Plaintiff’s the same instrument which contra- and the Sixth Amendment by send- great reliance on the Defendants’ dict each other.27 ing the prosecutor an email joking desire to rent his apartment.”39 A major difference between pat- “stipulate that my client is guilty. :)” ent and latent ambiguities is that The court found the email frivolous Is that a smile or extrinsic evidence is admissible to because of the “Smiley” emoticon.35 something else? explain latent ambiguities, but is A New Jersey court also had to There are unique issues with emo- not admissible to interpret patent interpret the “Smiley” emoticon. An jis, rendering them hard to interpret. ambiguities, because it would allow employee, terminated after an ex- For one thing, there’s no definitive 28 courts to rewrite a contract. tended medical leave, claimed she source as to what emojis mean. The There is an exception for introduc- was wrongfully fired.36 Videos showed Unicode Consortium is a non-profit ing extrinsic evidence, which exists the employee carrying boxes while trying to standardize emojis so they where the patent ambiguity con- on leave. The employer argued the work across various operating sys- cerns “identity, capacity, or the par- claim should fail because the employ- tems.40 However, Unicode is limited, 29 ties’ relationship with one another.” er thought the employee was abusing and may not consider slang, cultural Moreover, the “patent” and “latent” her leave. The court rejected the argu- and geographic differences.41 ambiguity distinction does not apply ment, noting in part, the employer’s Emojis are also small, making them when determining the capacity of the emails used “Smiley” emoticons when hard to read. Within each emoji are 30 parties to a contract. discussing the firing. subtle distinctions, making them Courts throughout the country take A Michigan federal court had to easy to confuse. There are also a lot of different approaches to extrinsic evi- rule on the impact of the “Face with the same type of emojis. For example, dence when a contractual ambiguity Stuck-out Tongue” emoticon :P.37 A Unicode lists hundreds of “Smiley & 31 is claimed. The rule differentiating law student investigated for online People” emojis.42 between patent and latent ambigui- stalking and harassing sued after The confusion is not limited to their 32 ties has been criticized. The growing prosecutors dropped the charges. size and variety though. Interpreting trend is to admit parol evidence to He claimed the investigation was an emoji can depend on what kind probe the parties’ intent, irrespective without cause, arguing his messages of device on which it is viewed. For 33 of the type of ambiguity. shouldn’t have been taken seriously example, a 24-inch computer moni- because of the :P emoticon. The judge tor displays things differently than Petitioner’s Exhibit A: held the emoticon did not “materially a four-inch phone screen. The inherent ambiguity of emo- alter the meaning of the text mes- Emojis are created so quickly, jis and emoticons is why they are sage.” people may not know what they are increasingly showing up in court. A Michigan appellate court threw sending and receiving. Apple recently At the high-tech “Silk Road” trial, out a defamation case based on an continued, next page 28 COMMENTATOR SPRING 2018

Emojis, Emoticons and the emoji is definitely not complimen- Endnotes tary. Strangely, Canadians use the 1 Gary Gulman, Undone by a semicolon, Ambiguity emoji the most. Comedy Central Records (2012). from preceding page 2 Mike Cherney, Lawyers Faced with Emojis and Emoticons Are All ¯\(ツ)/¯, Wall Street The “Eggplant” emoji is based on a Journal (Jan. 29, 2018). 3 species of Japanese eggplant that is For the witness comparison, see Benjamin announced the release of hundreds of Weisser, At Silk Road Trial, Lawyers Fight to new emojis.43 As new emojis are in- longer and thinner than the Ameri- Include Evidence They Call Vital: Emoji, New troduced, it takes time to learn their can variety.49 Unlike pizza, you will York Times, (Jan. 28, 2015). 4 meanings. There are also regional, not be able to order one at Food Fair See The Florida Bar v. Neiman, 816 So. 2d 587, 599 (Fla. 2002). using the “Eggplant” emoji anytime cultural, platform and slang differ- 5 The People v. L.F., A142296, at note 2 (Cal. ences that can change over time.44 soon. That’s because the “Eggplant” Ct. App. Jun. 3, 2015). In the Israeli case, the prospective emoji is a phallic reference in the 6 Yuri Kageyama, Shigetaka Kurita: The man tenant used a sequence of emojis. A United States.50 The emoji is banned who invented the emoji, Toronto Star (Sep. 21, 51 2017) (Kurita designed the original set of emo- string of emojis requires the reader to on some forums. jis in 1998 for a Japanese phone carrier whose identify each emoji and then decipher mobile internet service limited messages to 250 characters, requiring some kind of shorthand.) the sentence as a whole. There are no Owners of iPhones use the “Peach” 7 The emoji means “crying tears of joy”, and grammatical rules such as: “ before emoji as a euphemism for the but- was named “word of the year” by the Oxford  except after ” to explain whether a tocks because of how it appears on English Dictionary in 2015. See Elise Moreau, “Chipmunk” emoji gets placed before What Are the Most Popular Emojis Used on their phones. Samsung, Google and Social Media? Lifewire (Sep. 12, 2017) https:// a “Comet” emoji in sentences starting others companies vary the design of www.lifewire.com/what-are-the-most-popular- with a “Ballerina” emoji. their “Peach” emojis. While emojis are emoji-3485892. A few other examples show how the standardized by Unicode, variations 8 The emoji means “to own”, “possess”, or “Not Free of Charge”. See Ten emoji basically no one meanings of seemingly obvious emo- 52 exist. Since “Peach” emojis vary ever uses, Swiftkey.blog (Jan. 12, 2016) avail- jis can have more than one interpre- slightly on different types of phones able at https://blog.swiftkey.com/ten-emoji- tation for various reasons, rendering and applications, users may not see basically-no-one-ever-uses/ 9 them ambiguous: 53 The ancient Hittites used smiley emoticons or know of other associations. on their pottery at least 4,000 years ago. See Amanda Borschel-Dan, History’s ‘oldest smile’ The “Thumbs Up Sign” emoji is a Conclusion found on 4,000-year-old pot in Turkey, The positive gesture in the United States, Times of Israel, (Jul. 19, 2017). The “duck test” doesn’t work for 10 See U.S. v. Cochran, 534 F.3d 631, 632 (7th and an accepted way to signal ap- emojis because you can’t understand Cir. 2008). proval. But, in many countries, the 11 their meaning just by looking at Eric Goldman, Surveying the Law of Emojis, “Thumbs Up Sign” emoji is consid- Santa Clara University School of Law, Legal them. People use emojis in ways that ered obscene.45 Studies Research Papers Series, No. 8-17, (May have nothing to do with the physical 1, 2017). objects they represent, or even what 12 Brenda Stolyar, Thanks to Bitmoji De- The “Open Hands” emoji is a way luxe, my Bitmoji now gives me anxiety, Digital typographers intended. It’s okay, Trends (Feb. 12, 2018) available at https:// of saying “stop” and “back off” in the you’re not the only one who can’t fig- www.digitaltrends.com/features-category/my- United States. However, the “Open ure this one out: .54 After all, emojis’ bitmoji-gives-me-anxiety/ Hands” emoji, originally from Japan, inherent ambiguity is one reason 13 Pew Research Center, Internet and Technol- represents openness in Japan. ogy, Social Media Fact Sheet, (Jan. 12,2017). why they’re increasingly becoming 14 Brandy Shaul, Report: 92% of Online evidence in court. Consumers Use Emoji (Infographic), Adweek The “Folded Hands” emoji was orig- Open your . Emojis are taking (Feb. 5, 2018). inally designed to symbolize “please” over the . Grab a and this 15 Lydia Dishman, The Business Etiquette Guide To Emojis, FastCompany, (Jul. 14, 2016) and “thank you,” and it still does in down, or this article. To effective (advising “Do: Use emojis to infuse your emails Asia. However, in the United States advocates for our , and make our … with personality. Don’t: constantly send your it means: “I’m praying,” and is fre- law practices , we can’t from, or straight-laced boss smileys, cakes, and beer mugs when she never responds with even the quently and mistakenly used as a away from these hieroglyphs. simplest smile.”). 46 congratulatory “high-five.” It’s to up on emojis, or you will 16 Rock McCormick, Now you can use be . emoji to order pizza, The Verge (May 13, 2015) available at https://www.theverge. The “Pile of Poo” emoji is a pun on com/2015/5/13/8596849/use-emoji-to-order- the Japanese word for excrement Ronald H. Kauffman is Florida Bar dominos-pizza 17 (unko), which starts with the same board certified marital and family law, Id. 18 “oon” sound as the word for “luck.” J.J. O’Donoghue, Emoji: The evolution of and practices in Miami. He currently emoticons, Japan Times (Sep. 17, 2016). The emoji is complimentary in Ja- serves on the Executive Council of The 19 See Reilly v. Reilly, 94 So.3d 693, 696 (Fla. pan.47 In the United States though, Florida Bar Family Law Section. 4th DCA 2012). SPRING 2018 COMMENTATOR 29

20 See Taylor v. Taylor, 1 So. 3d 348, 350 (Fla. admissible “irrespective of any technical clas- 44 Prof. Laurie Beth Feldman, Emotional 1st DCA 2009). sification of the type of ambiguity present.”). Pictures, University of Albany News Center 21 See Cole v. Cole, 95 So.3d 369, 371 (Fla. 3d 34 Debra Cassens Weiss, Emoticons matter, (Nov. 9, 2016) available at http://www.albany. DCA 2012). judge rules in Silk Road trial, ABA Journal edu/news/74747.php. 22 See Duval Motors Co. v. Rogers, 73 So. 3d (Jan. 30, 2015). 45 Rachel Thompson, These emoji have of- 261, 265 (Fla. 1st DCA 2011). 35 U.S. v. Christensen, CR 06-085, U.S. Dist. fensive double meanings in some countries, 23 See King v. Bray, 867 So. 2d 1224, 1226 (Fla. Montana (Apr. 11, 2013) Mashable (Aug. 17, 2017) available at https:// 5th DCA 2004). 36 See Apatoff v. Munich Re Am. Servs., No. mashable.com/2017/08/17/emoji-culture- world/#zP_G6H6xkmqb 24 See Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 11-7570, 2014 U.S. Dist. LEXIS 106665 (D.N.J. 46 4th DCA 1997). Aug. 1, 2014). Ellen Rule, Breaking: Praying Hands emoji 37 still not a High-Five, Acclaim, available at 25 See Pan Am. W., Ltd. v. Cardinal Commer- See Enjaian v. Schlissel, 14-CV-13297 U.S. cial Dev., LLC, 50 So. 3d 68 (Fla. 3d DCA 2010). Dist., E.D. MI (May 27, 2015). https://www.acclaimmag.com/culture/break- 38 ing-praying-hands-emoji-still-high-five/ 26 See Ghanam v. Does, 845 N.W.2d 128 (Mich. See Riera v. Riera, 86 So. 3d 1163 (Fla. 3d 47 DCA 2012). Ct. App. 2014). Alice Gordenker, Golden Poop, Japan Times 39 (Mar. 20, 2007). 27 See Barrington v. Gryphon Investments, 32 Ephrat Livni, “Emojis prove intent, a judge 48 So.3d 668 (Fla. 2d DCA 2010). in Israel ruled” Quartz Media, (May 19, 2017) Arwa Mahdawi, What your country’s emoji available at https://qz.com/987032/emojis- use says about you, The Guardian, (Apr. 22, 28 See Nationstar Mortgage Co. v. Levine, 216 prove-intent-a-judge-in-israel-ruled/ 2015). So. 3d 711, 715 (Fla. 4th DCA 2017) 40 The Unicode Consortium is a non-profit 49 Alexandra Sifferlin, Eat This Now: Japa- 29 See Id. founded to develop, extend and promote use nese Eggplant, Time, (Aug. 5, 2013). 30 See Stein v. Miss Franie's, Inc., 417 So. 2d of standards which specify the representation 50 http://knowyourmeme.com/memes/egg- 726 (Fla. 1st DCA 1982). of text in modern software products and other plant-emoji 31 See Gilman v. John Hancock Variable Life standards, including emojis and emoticons. See 51 David Goldman, Instagram blocks 'offen- Ins. Co., WL 23191098 (Fla. 15th Cir. Ct. 2003) http://www.unicode.org/consortium/consort. (finding a few states refuse to consider extrin- html sive' eggplant emoji hashtag, CNN (Apr. 29, 2015). sic evidence, most states construe ambiguities 41 Amanda Hess, Exhibit A: ;-) Slate (Oct. 52 against the drafter as a “last resort” “tie-break- 26, 2015) available at http://www.slate.com/ Meghan Neal, What the Emoji You’re Send- er” and some states resolve ambiguities by articles/technology/users/2015/10/emoticons_ ing Actually Look Like to Your Friends, Moth- extrinsic evidence without any presumptions.). and_emojis_as_evidence_in_court.html erboard (Nov. 12, 2015) available at https:// 32 See Landis v. Mears, 329 So. 2d 323, 325–26 42 https://unicode.org/emoji/charts/full-emoji- motherboard.vice.com/en_us/article/78kzn9/ (Fla. 2d DCA 1976). list.html what-the-emoji-youre-sending-actually-look- like-to-your-friends 33 See Nationstar Mortgage Co. v. Levine, infra 43 Apple Newsroom, (Oct. 6, 2017) available 53 n. 23. See also Emergency Associates of Tampa, at https://www.apple.com/newsroom/2017/10/ Alex Fitzpatrick, Apple Just Saved the P.A. v. Sassano, 664 So. 2d 1000, 1003 (Fla. 2d apple-reveals-new-emoji-coming-to-iphone- Peach Emoji, Time (Nov. 15, 2016). DCA 1995)(holding parol evidence should be and-ipad-including-i-love-you/ 54 “Person Gesturing OK” Emoji.

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