*Alexander Robinson
I. Introduction
In March 2021, a Canadian farmer discussed selling eighty-seven metric tons of flax with a grain buyer.[1] The farmer texted the buyer a photo of the written contract with the words “[p]lease confirm flax contract,” to which the buyer replied with the message “👍.”[2] The flax shipment never arrived and the buyer sued for breach of contract.[3] A Saskatchewan trial court ruled against the farmer, holding that the farmer was accustomed to the buyer’s brevity in accepting his offers.[4] In the pair’s prior contracts, the court explained, the buyer manifested his acceptances to the farmer’s offers through short texts like “ok” or “yup.”[5] Thus, the “thumbs up” emoji was effectively identical to those prior texts, a concise yet perfectly “valid way to convey . . . acceptance of the flax contract.”[6] This quaint Canadian case portends a serious legal trend. Emojis are a growing form of communication that, like any other crucial piece of evidence, is something our factfinders must interpret.[7]
II. Emojis’ Predecessors and Rapid Growth
Humans’ use of images to communicate is not new—ancient civilizations used hieroglyphs and pictograms to express words and phonetic sounds.[8] In fact, a recently unearthed four-thousand-year-old ceramic pot contained a painted “smiley face.”[9] In the 1980s, as computer ownership grew in popularity, so did emoticons: punctuation marks that convey facial expressions when viewed horizontally.[10] The first ever emoji was created in 1999 and just eleven years later, hundreds of emojis were available on iPhones and Androids.[11] No study has definitely answered just how many people use emojis, but since most smartphones receive and send them and there are roughly 4.3 billion smartphone owners, emoji users are nearly triple the number of global English speakers.[12] Given emojis’ popularity, they are beginning to show up in our legal system. In 2023, 216 state and federal cases referenced emojis, a 17% increase from 2022.[13]
III. An Emoji’s Meaning Depends on Context
Like any other form of communication, emojis are not always meant to be taken literally and often convey slang and figures of speech. As Dictionary.com notes, the peach emoji is “mainly used to represent a butt . . . and so is more commonly called the butt emoji.”[14] A 2016 report corroborated this, estimating that 73% of tweets featuring a peach emoji discussed the body part.[15]
Decoding an emoji is no laughing matter in the courthouse. In a 2023 “pump and dump”[16] case that survived dismissal, a federal court held that a popular investor’s tweet describing a certain stock with a moon emoji could constitute securities fraud.[17] According to the court, a “fraudster may not escape liability simply because he used an emoji[]” to unlawfully induce social media followers to buy a particular stock.[18] Rejecting the argument that emojis had “no defined meaning,” the court explained that, like words, liability turns “on the emoji’s particular meaning in context.”[19] In that case, the plaintiffs plausibly alleged the defendant had a “cult following” of retail investors who “enthusiastically followed his moves” on social media “and invested accordingly.”[20] The followers understood the moon emoji as investing slang for when a stock’s price would soon rise to astronomic levels, or “to the moon[.]”[21] Thus, they conceivably believed the tweet signaled the defendant’s encouragement for them to buy the stock right away.[22]
IV. An Emoji’s Meaning May Also Depend on the Technology
A troubling issue is that emojis may look different to senders and recipients without their knowledge.[23] Messaging platforms can subtly tweak emojis’ appearances or fail to display certain emojis at all.[24] For instance, most major platforms depict the “pistol” emoji as a harmless water pistol.[25] But on X (the social media platform more commonly known as Twitter), it is unmistakably a modern metal firearm.[26] Because emojis unwittingly appear differently to communicators, lighthearted messages could be reasonably interpreted as serious threats.[27] This is significant because courts are beginning to convict people based on emoji-filled threats.[28]
In Washington, a juvenile court convicted a minor of harassing her mother based on texts.[29] The juvenile court reasoned that the minor’s texts suggested she wanted to kill her mother, constituting “true threats[.]”[30] However, an appellate court disagreed and reversed the conviction.[31] While the court characterized the minor’s texts as “distastefully violent,” it interpreted her statements as “hyperbolic” because of her frequent use of heart and “zany face” emojis.[32] Given the context, the texts expressed “an unmistakable message of sarcasm” and did not qualify as a “serious intent to cause harm or death.”[33]
V. Conclusion
Emojis, typically viewed as informal and friendly, are increasingly appearing in serious and hostile litigation.[34] But despite the trend, legal practitioners appear to be well-equipped to handle the challenges that emojis may bring. The fact that the legal community has remained unfazed by this widespread and rapidly accepted new communication style is remarkable. But since the field specializes in interpreting language, its ability to seamlessly adjust to the rise of emojis is noteworthy but not surprising.
On a daily basis, thousands of lawyers and judges nonchalantly tackle murky material like centuries-old constitutional amendments, hazy contractual agreements, and half-remembered conversations. As evidence of their mastery with language, they comfortably utilize numerous communication methods to aid their investigations, including in-person meetings with clients, phone calls with clerks, and email threads with colleagues. Because much of the field only exists to analyze language in various forms, it is ready to determine what a certain emoji was meant to convey. Whether or not lawyers and fact-finders want to interpret these new symbols, it’s clear that emojis and the confusion they bring are here to stay. But while some courts are now open to allowing parties to accept contracts with emojis, that doesn’t mean that any party should. 
Photo Credit: Gordon Johnson from Pixabay
*Alex Robinson is a second-year student at the University of Baltimore School of Law where he is a Staff Editor for the University of Baltimore Law Review and its incoming Editor-in-Chief. Last summer, Alex interned for the Honorable Justice Shirley M. Watts at the Supreme Court of Maryland. Following his spring externship in the Violence Reduction and Trafficking Offenses Section at the U.S. Attorney’s Office in Washington, D.C., Alex will intern with the Maryland Attorney General’s Office’s Organized Crime Unit and participate in the Thurgood Marshall Clerkship Program this summer.
[1] S.W. Ltd. v. Achter Land & Cattle Ltd., 2023 SKKB 116, para. 1 (Can.).
[2] Id. at para. 2.
[3] Id. at para. 1.
[4] Id. at para. 19–21.
[5] Id. at para. 21.
[6] Id. at para. 63.
[7] Infra Part V.
[8] Pictography, Encyc. Britannica, https://www.britannica.com/topic/pictography (last visited Feb. 21, 2025); Hellmut Brunner & Peter F. Dorman, Hieroglyphic Writing, Encyc. Britannica, https://www.britannica.com/topic/hieroglyphic-writing (last visited Feb. 21, 2025).
[9] Amanda Borschel-Dan, History’s ‘Oldest Smile’ Found on 4,000-Year-Old Pot in Turkey, Times Israel (July 19, 2017, 1:06 AM), https://www.timesofisrael.com/historys-oldest-smile-found-on-4000-year-old-pot-in-turkey/.
[10] Katy Steinmetz, In Praise of Emoticons 🙂, Time (Sept. 19, 2014, 7:30 AM), https://time.com/3341244/emoticon-birthday/. For instance, “ 🙂 ” signals a smiling face.
[11] Jacopo Prisco, Shigetaka Kurita: The Man Who Invented Emoji, CNN (May 22, 2018, 9:29 PM), https://www.cnn.com/style/article/emoji-shigetaka-kurita-standards-manual/index.html.
[12] See Emojipedia, https://emojipedia.org/ (last visited Oct. 15, 2024) (scroll to list of “Vendors & Platforms”); GSMA, The State of Mobile Internet Connectivity 2023, https://www.gsma.com/r/wp-content/uploads/2023/10/The-State-of-Mobile-Internet-Connectivity-Report-2023.pdf.; The Most Spoken Languages Worldwide in 2023, Statista (2024), https://www.statista.com/statistics/266808/the-most-spoken-languages-worldwide/.
[13] Eric Goldman, 2023 Emoji Law Year-in-Review, Tech. & Mktg. L. Blog (Jan. 22, 2024), https://blog.ericgoldman.org/archives/2024/01/2023-emoji-law-year-in-review.htm.
[14] Peach Emoji, Dictionary.com (Apr. 19, 2018), https://www.dictionary.com/e/emoji/peach-emoji/#.
[15] Hamdan Azhar, How We Really Use the Peach, Emojipedia (Dec. 16, 2016), https://blog.emojipedia.org/how-we-really-use-the-peach/.
[16] A “pump and dump” scheme is a type of securities fraud where fraudsters buy a security cheaply, spread false information to artificially inflate (“pump”) its price, then sell (“dump”) their holdings at the inflated price. The result is that the fraudsters lock in a profit by buying low and selling high, while the other investors are left with heavy losses because the security’s market price collapses from the fraudsters’ rapid selling. Pump and Dump Schemes, U.S. Sec. and Exch. Comm’n, https://www.investor.gov/protect-your-investments/fraud/types-fraud/pump-and-dump-schemes (last visited Apr. 4, 2025).
[17] In re Bed Bath & Beyond Corp. Sec. Litig., 687 F. Supp. 3d 1, 11 (D.D.C. 2023).
[18] Id.
[19] Id.
[20] Id. at 17.
[21] Id. at 11–12.
[22] Id. at 12.
[23] Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227, 1253 (2018).
[24] Id.
[25] Keith Broni, X Redesigns Water Pistol Emoji Back To A Firearm, Emojipedia (July 23, 2024), https://blog.emojipedia.org/x-redesigns-water-pistol-emoji-back-to-a-firearm/.
[26] Id.
[27] Goldman, supra note 23, at 1259.
[28] E.g., Justin Jouvenal, A 12-year-old Girl is Facing Criminal Charges for Using Certain Emoji. She’s Not Alone. Wash. Post (Feb. 27, 2016, 3:47 PM), https://www.washingtonpost.com/news/local/wp/2016/02/27/a-12-year-old-girl-is-facing-criminal-charges-for-using-emoji-shes-not-alone/.
[29] State v. D.R.C., 467 P. 3d 994, 1000 (Wash. Ct. App. 2020).
[30] Id.
[31] Id.
[32] Id. at 1002.
[33] Id.
[34] Goldman, supra note 23.
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