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The use of emojis - when the thumbs up becomes the thumbs down
16 July 2018  | Gerhard Smit
Emojis have undeniably become part of the language of communication used by most people not only in informal messaging, but also in business and official communications. The inevitable use of emojis as part of communication could result in legal consequences for the user thereof.

In the late 1990's, the first emoji was created in Japan and introduced into Japanese mobile phones. From 2010 onwards, emoji characters have been incorporated into a Unicode which is a standard system for indexing characters which resulted in the standardised use of emojis across different operating systems. Research by the technology platform Emogi shows that emojis have become the fastest growing language in history and are being used by 91% of the online population. Users of emojis add context to text-speak with options of non-verbal cues like nodding, smiling, frowning, thumbs up, thumbs down and more.  The addition of a single emoji can alter the meaning of the accompanying text.

Emoticons, emojis and Unicode images are not specifically classified under South African Law but can be categorised under the general definition of a "data message" in terms of the Electronic Communications and Transactions Act No. 25 of 2002 (ECTA). In terms of this Act, Section 13 (5) specifically provides that an expression of intent or other statement can be of legal force, even in the absence of an electronic signature, if there are other means from which a person's intent or statement can be inferred. Data messages are enforceable under South African Law and emoticons, emojis and Unicode images could therefore be admissible as evidence before a court if they are used as part of the interpretation of a party's communication.

Emojis are often capable of different interpretations, depending on the context of the message. There are several legal precedents internationally which are likely to be followed in our Courts as well.

For example:

1.    In a case from Israel, a couple conducting a messaging exchange with a landlord concerning a property listed for rent, included a message with a string of emojis (a smiley face, a comet, champagne bottle, dancing figures and more), together with an expression of interest and questions of setting up a viewing time. The landlord, relying on what he believed was a firm contract, removed the listing but the couple failed to take up the rental. The landlord was awarded damages by the Court for the loss of prospective rental income when he had acted in response to the misleading text messages. The couple was fined one month's rent as damages. In the case of Israel, there is a statutory obligation to negotiate in good faith. It was clear in this instance that the emojis and the use thereof assisted the Court in interpreting the significance of the pre-contractual negotiations.

2.    In the USA, a post containing the emoji of a police officer and three gun emojis pointing at the police officer resulted in the arrest of the sender on charges of a terrorist threat/a threat against the police.

Similarly, in South Africa, where the documents from an electronic source are admissible as evidence if it complies to the legal requirement of ECTA, the use of emojis such as thumbs up, a smiley face, champagne glasses, which creates the impression of acceptance or agreement in the mind of the receiver in official correspondence when negotiating an agreement, may contribute towards a conclusion that a binding contract between the parties exist.

The promotion of Equality and Prevention of Unfair Discrimination Act, Act 4 of 2002, prohibits hate speech on the grounds of race, gender or disability. If an objective assessment of the circumstances determines that a reasonable person would have believed that the communication is hurtful, harmful or inciting harm or promote hatred, the Equality Court can make an appropriate order in the circumstances including the award of damages to the affected person. The said Court can take into account words, emojis and emoticons to this effect.  In the context of South Africa and the prevalence of recent crimen injuria cases, we must make all users of emojis aware of its potential consequences and the interpretation thereof.

The context of communications enhanced by emojis betrays the state of mind of the sender. At a first glance, emojis are a fun and quick way to add non-verbal cues to communication. However, it becomes more important for all people to be mindful of the use of emojis in e-mails, texts and other message formats. Businesses and companies should have communication policies in place, specifically addressing the use of emojis in business communications.

In conclusion, always be mindful that whenever you use emojis as part of your communication, that a picture paints a thousand words and that you may be judged on it.
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