Abstract
Emojis have become an integral part of our daily communications. Through them, we express our emotions, complete the content of messages, qualify our words and, sometimes, we completely replace the text. It has not taken long for these pictograms to move from the keyboards of our devices to the courts. And the fact is that, not so long ago, the court rulings have been taking emojis into account to resolve both civil and criminal proceedings. Thus, the aim of this paper is to analyse what role emojis are playing as evidence, what problems and doubts are arising in practice and what challenges we will have to face in the future.
A Spanish version of this work was published in Revista de la Facultad de Derecho de México, num. 275, 2019, pp. 675–698. DOI: https://doi.org/10.22201/fder.24488933e.2019.275-2.71117; https://revistas.unam.mx/index.php/rfdm/article/view/71117.
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Notes
- 1.
The Real Academia Española’s Dictionary defines emoticon as “a representation of a facial expression used in electronic messages to allude to the sender’s mood”.
- 2.
However, it is not uncommon to cite other precedents. For example, Cuadrado Gordillo et al. (2015), p. 184, point out that the origin seems to go back to a 1967 article in Reader’s Digest magazine, although they recognize that Fahlman is credited with being the first to use it in an interactive context. Martín-Mora Parra (2017), pp. 199 et seq., also points to other precedents.
- 3.
The Real Academia Española’s Dictionary defines emoji as “small digital image or icon used in electronic communications to represent an emotion, an object, an idea, etc.”
- 4.
Vid. Sampietro (2016), pp. 58–59.
- 5.
On all types of devices and particularly on instant messaging services such as WhatsApp.
- 6.
We even have a “novel” in emoji version: Emoji Dick, an adaptation of Herman Melville’s famous work by artist Fred Benenson. However, he is not the only one, as artist Ken Hale has also done the same with Lewis Carroll’s Alice in Wonderland.
- 7.
Cfr. http://unicode.org/.
- 8.
There is even an emoji grammar that explains how to construct verb tenses using these pictograms. Vid. Vv. Aa. (2018).
- 9.
Literally, the court states: “This statement on its face cannot be taken seriously as asserting a fact. The use of the :P emoticon makes it patently clear that the commenter was making a joke. As noted earlier, a :P emoticon is used to represent a face with its tongue sticking out to denote a joke or sarcasm. Thus, a reasonable reader could not view the statement as defamatory”.
- 10.
- 11.
As we can see, the Spanish courts use the words emoji and emoticon interchangeably.
- 12.
Another was, for example, that the woman did not ask for a protection order because she stated that she did not feel threatened.
- 13.
In the same sense that we defend, see Provincial Court of Valladolid’s decision 119/2015, April 13th: “The appellant states in his appeal that the ‘WhatsApp statuses’ are not a form of communication, given that all forms of communication require a sender, a message and a receiver, and, in this case, there was no message addressed to the complainant with the intention of breaching the court order. This Chamber does not share the appellant’s assessment, but does share that of the Court of First Instance. The information that is placed in the ‘WhatsApp status’ by a user of the aforementioned application is information that is placed so that it can be viewed and known by all those who have that mobile phone number incorporated into their phone, but in this case the accused took advantage of the subterfuge of the ‘WhatsApp status’ to break the prohibition of communication that had been imposed on him, because instead of offering any information that could be used to identify him, what he did was to send communications that could be used to identify him, specifically addressed to the person with whom he had been told that he could not communicate, communications that also had a clearly offensive content, and in which, in addition, due to the method used, he caused his offensive expressions to enjoy a certain amount of publicity, precisely among all his ‘WhatsApp’ contacts, which is why it is agreed that the accused has indeed breached the communication prohibition order he had and that he has also committed the offences of insult for which he has been convicted”.
- 14.
- 15.
Notes Janssen (2018), p. 714, that one of the reasons emojis are difficult to interpret lies in their close association with emotions. He adds that two or more emojis together can further change the meaning of a message. In this sense, Evans (2017), p. 13, points out that the repetition of emojis serves to emphasise.
- 16.
The fact that a different element of a word influences or conditions the meaning of a sentence is certainly not new. Conan Doyle himself gives us an example in his Study in Scarlet: “Upon rising next morning he found, to his surprise, a small square of paper pinned on to the coverlet of his bed just over his chest. On it was printed, in bold straggling letters:
‘Twenty-nine days are given you for amendment, and then—’
The dash was more fear-inspiring than any threat could have been”.
- 17.
Not to mention the interpretation that some have made of the aubergine emoji, banned on certain platforms as a phallic reference.
- 18.
Emojipedia is, so to speak, the emoji “dictionary”. Cfr. http://emojipedia.org/.
- 19.
It is also understood by Berels (2017), p. 32, in the same way.
- 20.
On the importance of context, Evans explains an example given by Stephen C. Levison: let us imagine that we find a bottle floating in the sea containing the following message: “Meet me here in a week’s time with a stick of this size”. We do not know who wrote the message, or when, or where, or the size of the stick we should carry. We have no context and therefore cannot properly understand the message. Vid. Evans (2017), p. 42.
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Álvarez, A.R. (2024). No Words Needed? Emojis as Evidence in Judicial Proceedings. In: Carneiro Pacheco de Andrade, F.A., Fernandes Freitas, P.M., de Sousa Covelo de Abreu, J.R. (eds) Legal Developments on Cybersecurity and Related Fields. Law, Governance and Technology Series, vol 60. Springer, Cham. https://doi.org/10.1007/978-3-031-41820-4_13
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