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.