Emojis

Much Ado About Emojis

I wonder what Herman Melville would think of Emoji Dick. Or what possessed Fred Benenson, a data engineer, to “translate” Melville’s iconic novel into emojis (with a little help from some modestly-paid friends via Kickstarter). While perhaps not as monumental as the ongoing project to translate the World English Bible into Klingon, the fact that Emoji Dick now resides in the Library of Congress (along with other translations into Spanish, German, Russian, etc.) is an indicator that emojis are an accepted part of the 21st-century lexicon.

While I’ll admit to using emojis in texts with my teenage daughter or on social media, to date I have drawn the line on incorporating emojis into work communications. The English major, lawyer, and baby boomer in me just won’t allow it. But if you believe recent headlines in such venerable business publications as Inc. and The Wall Street Journal, I’m a bit of a dinosaur.

Emojis at work are not only acceptable but are actually a good thing.

The business considerations behind the use of emojis internally or with customers may well be industry-dependent. Do communications including emojis make the company look less professional? Does the lack of emoji use make the company look stodgy and out of date?

What may be right for a cutting-edge tech company may not be right for an accounting or law firm.

The argument for using emojis in business communications generally boils down to this: emojis can be used to soften the imperious tone of requests made of colleagues (think, “I need this by Friday” followed by a sheepish smiley face), and can be used to efficiently express “prosocial” emotions (think “bear hug” emojis sent to team members working hard on a project). CircleCI, a San Francisco-based technology company, has made it company policy to use emojis in internal communications in its Slack collaboration hub—emojis that have been customized for CircleCI by Slack. Slack says it has created 26 million custom emojis since the feature was introduced, so clearly Slack’s customers believe emojis provide real value for their teams and are powerful and efficient communication tools.

But with great power comes great responsibility.

Regardless of industry, there are obvious legal ramifications that may result from careless or improper use of emojis in communications with co-workers or customers/clients. Over the last five years, in particular, there have been an increasing number of lawsuits in which emojis play a role. Unsurprisingly, the largest number of cases fall into the categories of civil harassment and criminal cases involving threatening behavior. Emojis are used both by prosecutors and plaintiffs to demonstrate malintent (emoji guns pointed at emoji people, or kissing and winking emojis—and worse—sent from a supervisor to a subordinate). They are also used by defendants to demonstrate a lack of malice (threatening words followed by a winking smiley-face emoji in lieu of “jk”).

Emojis pop up in unexpected areas of litigation as well, and have even made it into the realm of contract law. The most oft-cited example is a case in which an Israeli landlord used six celebratory emojis (champagne bottle, dancing people, etc.) as evidence that prospective tenants had agreed to lease his property—and won!

While in most instances the courts have come to their own conclusions regarding the interpretation of the meaning behind emojis placed into evidence, occasionally experts are called in to interpret the meaning of emojis used either alone or in conjunction with other verbiage in texts or emails.

Depending on the type of case and the elements of proof, the use of emojis may have less to do with the intent of the sender and more to do with the perception of the receiver. This is complicated even more by the fact that emojis are not identical on all devices. A gun emoji sent from an Apple phone may look like a toy, but when received upon another platform, it may appear more realistic and thus, be perceived as more threatening.

All of this should be a wake-up call to businesses. Whether sanctioned or not, emojis are in the workplace, and it is time for business leaders and their counsel to review employee handbooks and other company policies with emoji use in mind. It may be that existing handbooks and policies regarding workplace communications are general enough to properly cover emojis, but inclusion of a training session that focuses on the appropriate use and potential misuse of emojis is likely past due.

At the end of the day, common sense should prevail, but reminding employees that any communication they send could end up with “Exhibit A” on it in a court proceeding may get them to think twice before sending an emoji that could be misconstrued.

And for those of you who are curious to see how “Call me Ishmael” is translated into emoji:

About Peg Donahue-Hall

Peg Donahue-Hall
Peg Donahue Hall is partner at Spencer Fane LLP in the firm’s Dallas office. She has spent her legal career assessing risk and efficiently resolving thorny business and legal issues for clients — whether by negotiation, litigation, or other dispute resolution mechanisms. She can be reached at phall@spencerfane.com.

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