Can You Be Liable for the Emojis You Use?

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Emojis have infiltrated our everyday communications. They're fun to use and add pizzazz to messages and social media posts. But their use can create liability in surprising ways, like form a criminal threat or create a legally binding contract. Emoji law expert Professor Eric Goldman explains when emojis may have the same legal weight as words and the types of liability that can arise from their use.

 

  Eric Goldman is a professor at Santa Clara University School of Law and co-director of its High Tech Law Institute.


Can You Be Liable for the Emojis You Use? Brief Transcript

You’re probably using emojis; I do, too. Who doesn’t love emojis? But they also might have legal risks that we haven't  thought about. Can you be liable for the emojis you use? The answer is yes. My name is Eric Goldman. I'm a professor of law at Santa Clara University School of Law. I’ve written and talked about the topics of emojis and the law.

One of the issues we’ve encountered is people will think that they are not going to be held liable for the emojis that they choose as if they were somehow different than words or different than the statements that they might make, and therefore, they can somehow have plausible or actual deniability for the emojis that they choose. And that’s not how it works. When issues arise in court taking a look at things said online, we look at the words, we look at the symbols included, and we interpret them all together.  

So for example, let's talk about a criminal situation. If someone were to criticize the police and say ,“I really hate the police,” that alone would not be actionable. But if it started to sound like a threat against the police officers and then it was coupled with the emojis like the gun emoji, the bomb emoji, and the knife emoji, those emojis will be interpreted in context of your words to determine whether or not you had made a threat to commit violence. So when you add the gun knives and bomb emojis to your disparagement of the police, that could add legal consequences that the words themselves wouldn't have had.  

Another example could be that you’re chatting with friends about a transaction. They might be offering to sell their car or TV set or some other item and they are suggesting whether or not you might be interested in buying it. And if you give the emoji, the thumbs up saying that you're interested. That’s a legally binding contract. You’ve committed to actually purchase it by the ways in which you’ve expressed your intent. The fact that it was done in an emoji versus saying yes or “I agree to buying this,” or writing a signature on a piece of paper is immaterial. The symbol expressing your enthusiasm for the proposal can be enough to actually constitute commitment that would be legally recognized.  

So should you continue using emojis despite the fact that they have legal consequences? Absolutely. Emojis are fun, and you should keep having fun with them.  But don’t treat them as if they are some special class of content. Treat them as if they are the potentially legally binding obligation that you might otherwise have with the words that you choose.  As always online, mean what you say and say what you mean. My name is Eric Goldman. Thank you for watching TalksOnLaw.