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Decoding Emojis During eDiscovery 🔎

Every November, Oxford Dictionaries announces its Word of the Year (WOTY). And back in 2015, Oxford Dictionaries announced a WOTY winner that had many linguists throwing up their hands and proclaiming the end of human civilization. The Word of the Year was revealed as 😂. To be clear, the WOTY was not the word “emoji”; it was the actual Crying From Laughter Emoji.

Now, it’s tempting to dismiss this move as a stunt, but there’s no denying that it reflected a fundamental change in the way we all communicated. When it came to communication channels like social media, team collaboration tools, and mobile text messaging, emojis had become a core part of our vocabulary. And they have become even more commonplace in our messages since 2015. Even in the relatively formal environment of a large multinational corporation, it’s not unusual for colleagues to include emojis in their Slack or Workplace by Facebook messages.  

The Benefits of Emojis in Social Media 

While a cartoony emoji can seem like a frivolous add-on to a message that has very little value in itself, it’s worth pausing to consider why they’re so popular.  

Don’t underestimate the value of the simple emoji, argues Jenna Schilstra in her TED Talk, In defense of emojis. From ancient Egypt to modern-day Japan, visual characters have long been used as a vital form of communication. And in a world where we’re now constantly communicating with each other through mobile text messages, collaboration platforms, and social media comments, emojis have the power to not only clarify what we mean, but also add some humanity to what can otherwise be impersonal channels. 

“Emojis amplify and clarify your subtext,” says Schilstra. “So all you have to do is add a smiley face, and your tone is perfectly clear.”

What’s the “True” Meaning of an Emoji?

It’s important to consider the use and purpose of emojis in online communication because it highlights a crucial truth: much more so than the written word, emojis are open to interpretation. 

 

When, for instance, is an eggplant not really an eggplant? A message containing this emoji string, 🍎🍐🍆🌽🍌, will likely exist within a very different context from one that looks like this 😍😏🍆😜. 

The first could be a grocery list, while the second could very well be inappropriate innuendo relevant to a sexual harassment case. 

But even that second string can’t automatically be classified as inappropriate. To truly understand what message all those little emojis are trying to convey, you need to understand the context. 

While it’s true, as Jenna Schilstra argues, that “emojis amplify and clarify your subtext,” emojis also demand a much better understanding of the context they’re being used within. In that sense, the use of an emoji is more akin to a face-to-face verbal statement than a written sentence. So much of what we convey is nonverbal and implied when we speak in person—gestures and facial expressions carry a lot of content, but you can only decode it successfully if you’re familiar with the context.

Emojis and the lawHere’s a real-world example from the legal world. In 2019, it was reported that Bay Area prosecutors tried to use an emoji string as evidence that an accused man was guilty of pimping charges. 

He had sent the following direct message through Instagram: “Teamwork make the dream work 👠💰.”

According to prosecutors, the message suggested a working relationship between him and the woman he had sent it to, but he argued that he had simply been trying to initiate a romantic relationship with her.

To help make their case, prosecutors brought in an expert specializing in sex trafficking to argue that the message was saying “wear your high heels to come and make some money.” The expert also stated that a crown emoji the accused had used in a previous message implied that “the pimp is the king.”                  

Ultimately, this emoji evidence didn’t make or break the case, but it did add evidentiary support. And according to Eric Goldman, an expert in the area of emoji-related litigation, these kinds of situations are increasing in number. And as they increase, courts need to develop tools for interpreting emojis effectively.  

“Emoji usually have dialects,” says Goldman. “They draw meaning from their context. You could absolutely talk about emoji as a phenomenon, but as for what a particular emoji means, you probably wouldn’t go to a linguist. You would probably go to someone who’s familiar with that community, just like they did with the sex trafficking case.”

Social Media, Emojis, and Evidence Collection

Emoji expert Eric Goldman is a Santa Clara law professor who has been tracking the prevalence of emojis in litigation since the early 2000s. This graph (created by him) shows how it has skyrocketed.

emoji-chart

Credit: Eric Goldman

For legal teams and eDiscovery professionals, this trend again highlights the importance of having insight into context and intent. When it comes to collecting evidence from social media, team collaboration tools, and mobile text messages, it’s crucial to see posts, messages, and conversations exactly as they originally appeared. Looking purely at a CSV spreadsheet of exported data will often not provide the necessary context. 

Only by looking at messages and conversations exactly as they originally appeared can legal professionals begin to identify subtext and understand the implicit meaning all those emojis, Twitter terms, and chat abbreviations are actually trying to convey.

Another important consideration that Goldman discusses in a detailed academic paper is the fact that different operating systems, platforms, and applications render emojis in different ways. A smiling emoji on an iPhone, for instance, will not look exactly like one on an Android phone.  

Sometimes the differences can be truly significant. Sending a Grinning Face With Squinting Eyes 😄 on iOS 10 could end up looking like this 😬 on an iOS 9 device.  

This is yet another reason why it’s crucial to see what a message looked like on the native platform. Only by getting a live replay of a message can you be sure that you’re getting the same experience as the original user.

Pagefreezer’s solutions offer legal teams an easy way to collect and view online data for early case assessment. See content exactly as it appeared on the original platform, complete with emojis, reactions, edited posts, and deleted comments. Connect with a Solution Advisor to see our software in action.

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Peter Callaghan
Peter Callaghan
Peter Callaghan is the Chief Revenue Officer at Pagefreezer. He has a very successful record in the tech industry, bringing significant market share increases and exponential revenue growth to the companies he has served. Peter has a passion for building high-performance sales and marketing teams, developing value-based go-to-market strategies, and creating effective brand strategies.

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