Washington University Journal of Law & Policy Volume 52 Justice Reform 2016 The Emoji that Cost $20,000: Triggering Liability for Defamation on Social Media Nicole Pelletier Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Computer Law Commons, Courts Commons, Entertainment, Arts, and Sports Law Commons, European Law Commons, Internet Law Commons, and the Torts Commons Recommended Citation Nicole Pelletier, The Emoji that Cost $20,000: Triggering Liability for Defamation on Social Media, 52 WASH. U. J. L. & POL’Y 227 (2016), https://openscholarship.wustl.edu/law_journal_law_policy/vol52/iss1/15 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. The Emoji that Cost $20,000: Triggering Liability for Defamation on Social Media Nicole Pelletier I. INTRODUCTION Social media1 has taken the world by storm.2 As of 2016, over three billion people in the world are active Internet users,3 and over two billion are active on social media.4 Facebook reports 1.79 billion monthly active users worldwide,5 while another statistic reporting the number of active Facebook users says it is “still counting.”6 With lower but still influential numbers, Twitter reports 313 million monthly active users for 2016.7 In 2013, social media surpassed email J.D. (2016), Washington University School of Law. 1. The phrase “social media” serves to describe interactive websites where users can post comments, photos, and other content to communicate virtually with other users. See Social Media Definition, OXFORD LIVING DICTIONARIES, https://en.oxforddictionaries.com/ definition/ social_media (last visited Oct. 20, 2016) (defining social media as, “[w]ebsites and applications that enable users to create and share content or to participate in social networking.”). The most common social media websites for users in the United States include Facebook, Twitter, Google Plus, and Instagram, but there are numerous others throughout the world. See Simon Kemp, Digital, Social & Mobile Worldwide in 2015, WE ARE SOCIAL (Jan. 21, 2015), http://wearesocial.net/blog/201015/01/digital-social-mobile-worldwide-2015/ (citing global statistics on use and popularity of social media for Internet users). 2. See generally Andréa Ford, The Global Network: Facebook Has Conquered America. Can It Take Over the World?, TIME, at 59 (Dec. 2010), www.time.com/time/pdf/global_ network.pdf (mapping the number of active Facebook users in 2010 throughout the world). 3. Statistics and Facts of Internet Usage Worldwide, STATISTA, https://www.statista. com/topics/1145/internet-usage-worldwide/ (last visited Oct. 2, 2016) (“Currently, more than 3.17 billion people worldwide access the internet.”). 4. Statistics and Facts About Social Networks, STATISTA (Oct. 2, 2016, 11:46 AM), https://www.statista.com/topics/1164/social-networks/ (reporting 2.34 billion social media users in 2016). 5. Company Info, FACEBOOK NEWSROOM, http://newsroom.fb.com/company-info/ (last visited Nov. 12, 2016). 6. See Shea Bennett, Facebook, Twitter, Instagram, Pinterest, Vine, Snapchat—Social Media Stats 2014, SOC. TIMES (June 9, 2014, 3:00 PM), http://www.adweek.com/socialtimes/ social-media-statistics-2014/499230. 7. See, TWITTER, https://about.twitter.com/company (last visited Nov. 12, 2016). 227 Washington University Open Scholarship 228 Journal of Law & Policy [Vol. 52:227 to become the number one Internet activity in the United States.8 Most sources agree that social media use will continue to grow9 and that social media communication will continue reaching new heights globally.10 The staggering number of social media users11 provides new ways for individuals to communicate. Twitter,12 for example, enables users to post statements called “tweets.”13 Tweets contain up to 140 characters, and may be accompanied by photos, videos, and links.14 Within the 140 characters, users may include Emoticons. An Emoticon, more commonly referred to as an emoji, is “[a] small digital image or icon used to express an idea, emotion, etc.[,]” in 8. Felix Richter, Social Networking is the No. 1 Online Activity in the U.S., STATISTA (Aug. 14, 2013), http://www.statista.com/topics/1164/social-networks/chart/1238/digital-media- use-in-the-us/ (noting that the average U.S. resident spent thirty-seven minutes per day on social media in 2013). 9. See, e.g., Kemp, supra note 1 (noting the expansive growth of social media use and stating that such growth “shows no signs of slowing anytime soon”); Carlos Monteiro, Infographic: Who’s Really Using Facebook, Twitter, Pinterest, Tumbler, and Instagram in 2015, ADWEEK (Jan. 12, 2015, 12:02 AM), http://www.adweek.com/news/advertising- branding/new-social-stratosphere-who-using-facebook-twitter-pinterest-tumblr-and-instagram- 2015-and-beyond-1622 (predicting that the number of users of popular social media websites, including Twitter, will continue to increase and that the most drastic increase in users will come from the sixty-five and older demographic); Proctor, supra note 7. 10. This Note focuses on social media within the U.S. legal framework. The use and effect of social media, however, spans continents. See The World Factbook, CENTRAL INTELLIGENCE AGENCY, https://www.cia.gov/library/publications/the-world-factbook/rankorder/ 2153rank.html (last visited Sept. 17, 2016) (listing the top three regions with the most populous Internet users as China, the European Union, and the United States, in that order); Company Info, supra note 5 (detailing Facebook headquarters’ report that “[a]pproximately 84.2% of our daily active users are outside the US and Canada.”). Even in countries where the government has banned certain social media websites, citizens remain active users. See Geelan Fahimy, Comment, Liable for Your Lies: Misrepresentation Law as a Mechanism for Regulating Behavior on Social Networking Sites, 39 PEPP. L. REV. 367, 386 n.111 (2012) (citing Ford, supra note 2) (observing that even though the Chinese government constantly blocks Facebook, nearly 100,000 people in the country actively use the site). 11. See generally Kemp, supra note 1 and accompanying text (noting the use and popularity of social media throughout the world). 12. See The Twitter Glossary, TWITTER, https://support.twitter.com/articles/166337-the- twitter-glossary (last visited Feb. 8, 2015) (“Twitter [is] [a]n information network made up of 140-character messages (including photos, videos and links) from all over the world.”). 13. The Twitter Glossary, supra note 12. The term “tweet” is also used in the Twitter community as a verb, meaning to upload a statement onto Twitter. The Twitter Glossary, supra note 12 (“Tweet (v.), The act of sending a Tweet.”). 14. The Twitter Glossary, supra note 12. https://openscholarship.wustl.edu/law_journal_law_policy/vol52/iss1/15 2016] The Emoji that Cost $20,000 229 electronic communication.15 Emojis are often included alongside text to portray an emotion or otherwise add to readers’ understanding of the text.16 The most basic emoji is a yellow smiley face, but emojis span from face emotions, like happy, sad, and angry, to animals and ordinary objects, like a cat or a briefcase.17 With such options, tweets are largely only limited by individual users’ creativity. After a user posts a tweet, the tweet displays on the user’s personal timeline. More popular tweets may also end up on blogs and other websites.18 Twitter, like other social media websites, gives users the ability to post statements virtually, affording opportunities for disconnected communication19 and anonymity,20 along with the power to reach millions from a desktop at home.21 The popularity of social media has given rise to new legal issues.22 Social media provides users with a new medium for communication, 15. See Definition of Emoji in English, OXFORD LIVING DICTIONARIES, https://en.oxford dictionaries.com/definition/us/emoji (last visited Oct. 10, 2016). 16. See Lisette Mejia, 17 People Who Emoji Better Than You, POPSUGAR (June 28, 2016), http://www.popsugar.com/tech/Funny-Emoji-Texts-35465201#photo-35465201 (showing instances where people used emojis to tell a story). Today, people use emjois not only on Twitter, but also in text messages, emails, other social media websites, and other electronic communication. Id. 17. See Emoji Keyboard Online, https://emojikeyboard.org/ (last visited Oct. 10, 2016) (illustrating available emojis). 18. The Twitter Glossary, supra note 12. 19. See, e.g., Brandon Copeland, Social Media: The Decline of Face-to-Face Communication, BRAND & MORTAR (Sept. 10, 2014), http://www.brandandmortar.com/social- media/social-media-killer-face-face-communication/ (arguing that social media has led to the decline of face-to-face communication and thus inhibited real relationships formed by expressing emotions); Brian Jung, The Negative Effect of Social Media on Society and Individuals, HOUS. CHRON., http://smallbusiness.chron.com/negative-effect-social-media- society-individuals-27617.html (last visited Feb. 8, 2015) (claiming that one of the negative effects of social media is “a [f]alse [s]ense of [c]onnection”). But see, e.g., Claire Cain Miller, Technology Has Made Life Different, but Not Necessarily More Stressful, N.Y. TIMES (Jan. 15, 2015), http://www.nytimes.com/2015/01/16/upshot/technology-has-made-life-different-but-not- necessarily-more-stressful.html?_r=0&abt=0002&abg=0 (noting studies that show social media reduces stress, and arguing that communication through technology leads to closer relationships). 20. See Jung, supra note 19 (“The anonymity afforded online can bring out dark impulses that might otherwise be suppressed.”). 21. Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 13 J.