Emojis play a significant part in digital communications, including casual messaging, social media posts, and increasingly, professional communications. When we are reviewing historical messages, understanding what the emojis were intended to mean could become an essential part of identifying what was discussed and/or agreed at that time.

What is an emoji?

An emoji is a pictogram embedded in text used in electronic messages and web pages. An emoji extends language by filling in emotional cues otherwise missing from typed conversation as well as replacing words. They can set an emotional tone in messages, adding meaning, clarity and credibility to text.

They are ubiquitous in social media. Facebook estimate that over 900 million emojis are sent every day without text on Messenger with over 700 million emojis used in Facebook posts every day, while it is estimated also that half of all comments on Instagram include an emoji.

Emoji characters are standardised into Unicode by Apple and Google. They include facial expressions, activity, food and drinks, celebrations, flags, objects, symbols, places, types of weather, animals and nature. Apple iPhone users have access to over 3600 emojis but with the development of the ‘genmoji’ available following the iOS 18 update released in September 2024, users can create original genmojis to express themselves through custom characters.

Not only do we have the ubiquitous generic emojis in modern communications, therefore, but their variety are also set to continue to grow and become increasingly personalised.

The meaning of emojis in different cultures

There is a temptation to regard the use of emojis as heralding a new form of communication, particularly as it is possible to capture emotions at life events such as a birth or wedding by writing social media posts purely using emojis. This has led to declarations by linguistic professors that emojis have become the world’s universal form of communication or even language.

However, emojis do not by themselves constitute meaningful communications between two people, as they are used to complement meaning by enhancing text messages and social media posts in a form of additional punctuation through expressions of nuance, tone, and emotion.

A recent YouGov survey found that people across 17 international markets preferred communicating with friends and family via SMS or text message (40%) as opposed to mobile phone calls (29%), with the preference for texting particularly high among 18 to 24 year olds.

As the message might be one line only, using emojis to express feelings and emotions removes the risk of it being misinterpreted as negative, bossy or rude.

However, emojis don’t mean the same thing to all people. While the thumbs up symbol 👍 means approval in Western culture, I understand it can be interpreted as vulgar and offensive in the Middle East. In China, I understand the slightly smiling emoji 🙂 is not a sign of happiness but implies distrust or disbelief. Joining the palms 🙏, one of the most widely used emojis, may carry religious significance in the West. But in Japan, the birthplace of emojis, the symbol, to many, means please or thank you.

Therefore, while emojis are seen as having the power to bring people closer together, in a legal context, it is essential to be clear as to both the meaning of the emojis as well as the emotional intention of the message sender.

Judicial interpretation of emojis

In the Australian defamation case of Burrows v Houda in 2020, involving a claim for defamation for the publication of two posts on Twitter, the District Court of New South Wales found that expert evidence was not necessary to interpret the relevant emojis. The court instead consulted internet dictionaries to interpret emojis, commenting that:

‘the nature of modern communications makes consultation of internet dictionaries, such as Emojipedia, a necessary step for the trier of fact who seeks to determine what the ordinary reasonable Twitter reader would make of the use of these symbols.’

In the Canadian case of South West Terminal Ltd v Achter Land [2023] SKKB 116, one of the parties habitually used the thumbs up emoji 👍 to represent an agreement. The disputed issue was whether the reply containing the thumbs up emoji 👍 in a significant email to a contractual offer amounted to acceptance. The court held that the thumbs up emoji 👍 signified acceptance of the contract. This was because texting a thumbs up emoji 👍 was like using words which had also been used during the transaction such as ‘looks good’, ‘ok’ or ‘yup’. The judge held that the ‘courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like’.

In Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte Ltd [2024] EWHC 255, a thumbs up emoji 👍 was confirmed by the High Court as acceptance of contractual terms.

However, the Scottish case of Leander CB Consultants Ltd v Bogside Investments Ltd and Alan McLeish CA4/22 [2024] CSOH 9 made clear that the context needs to be managed, in considering different emojis such as a laughing/crying emoji 😂.

Therefore, while a thumbs up emoji 👍 is an established legal form of language to signify acceptance, the context of the situation remains important.

Emojis in context

In the USA, a District Court for the District of Columbia ruled in 2023 in Re Bed Bath & Beyond Securities Litigation that using a ‘smiling moon’ emoji 🌝 in a tweet could potentially constitute securities fraud. This was because a ‘meme stock investor’ was using social media to tell his audience that the value of the stock was going up, i.e. ‘to the moon’ or ‘take it to the moon’, to encourage them to buy the stock, prior to him selling his own stock, causing the stock price to subsequently plummet by 40%. This message was associated with the smiling moon emoji 🌝 in meme stock subculture.

In family law, emojis are more likely to be significant in explaining the emotions of parties at the time of their texts and emails. But the nuances are significant. For example, does a shrug emoji 🤷 indicate confusion or indifference to a financial remedy proposal? Does a stack of pound notes 💷 mean that a divorce is expensive, or that one spouse is wasting assets on purpose? Does a smiley face 🌝 denote acceptance? Does a thumbs down emoji 👎 mean ‘I do not agree’.

While no specific criteria have been developed yet to determine what emojis mean in context, the following observations might be helpful to consider:

• What previous use did the party make of a particular emoji, and why?
• Is the party using an emoji in a generic or specific way to send a certain message?
• What interpretation does the party place on the emoji, and how has that changed over time?
• Has the emoji been used to give an alternative impression in the same negotiations?
• If a personalised emoji has been used, what was the intended meaning, and could other interpretations be drawn?

Judicial use of emojis

The judgment of Peter Jackson J in Lancashire County Council v M [2016] EWFC 9 is believed to have been the first by a Senior Court Judge in England and Wales to use emojis in the judgment. It was praised for being written in a way that the children caught up in the case could understand. The relevant passage was as follows:

‘The mother left a message in the caravan for the father’s sister, who I will call the aunt. It told her how to look after the family’s pets. The message said that the family would be back on 3 August. It has a 🌝 beside the date. After the family left, the police searched the caravan. They found the message and say that the 🌝 is winking, meaning that the mother knew they wouldn’t be coming back. I don’t agree that the 🌝 is winking. It is just a 🌝. The police are wrong about that, and anyhow they didn’t find anything else when they searched the caravan.’

Comment

Communications are crucial in our daily lives, and in family law, what a couple, their respective legal advisors and even judges intend by their language is often the key to deciding a fair outcome.

It is therefore perfectly conceivable that our case law will develop in TLATA and Financial Remedy cases to determine the context and intention in respect of emojis, depending on which ones are used, and what they are intended to mean.

There is scope for the use of emojis to be considered where there is statutory legislation, which allows for judicial discretion. For example, the emojis within texts and emails between a cohabiting couple sent casually around the time a home is purchased could end up being inferred as a common intention to establish a constructive trust in TLATA cases. Similarly, the emojis communicated electronically between an engaged, married or separated couple could be considered as an intention to form a nuptial or separation agreement and therefore relevant as part of ‘all of the circumstances of the case’ or as ‘conduct’ within the s 25 exercise under the Matrimonial Causes Act 1973, when redistributing resources between them on a divorce.

Therefore, while emojis might seem to us to be everyday innocent and amusing pictures to brighten our messaging visually, we need to be aware that they could lead to unintended consequences, including the risks and uncertainties of litigation. The conclusion must be that whatever you write, and however you write it, always make sure it is clear ✍ 🗒 👌.