It was actually my mum who forwarded me this article about lawyers in the US and the ambiguity that has arisen in cases where people were using “emojis” in their social media exchanges.
The Oxford dictionary defines an emoji as: “A small digital image or icon used to express an idea or emotion”. For example, an emoji can be a smiley face, crying face or even a monkey covering its ears.
Emojis are often misinterpreted or there is a difference of opinion as to what each emoji means. The interpretation of what an Emoji means is important in circumstances where the exchange is being used as evidence in court proceedings.
The use of social media posts as evidence is increasing rapidly. Family law matters frequently see social media posts such as: Facebook, email exchanges, Instagram posts etc. and being used in court in support of various arguments, from evidencing relationships through to evidencing inappropriate behaviour.
With the increased use of social media evidence comes the issue of interpretation of the evidence provided to the court. The article outlined a few examples of where court matters were focused on the dispute of what a particular emoji meant. For example, the article outlined a case in which a party had allegedly sent sexually explicit texts to a former employee.
The debate arose when a text message was shown to the court and the parties argued about what was meant by the emoji. The former employee sent a “red kiss lips” emoji in response to the allegedly explicit text message received from her former boss. One party suggested that it was an acceptance of the advance while the other argued it was an attempt at shutting down the conversation.
It was up to the solicitors in the matter to build a case surrounding how the emoji should be interpreted.
So why is this all relevant in family law? In light of the above example is it important to be careful as to what you post on social media. It is important to be aware of how you communicate with people whilst using social media. Anything you write on Facebook or any other social media platform can potentially be used as evidence and may be detrimental to your case.
Posts on public forums and blogs can often be tracked down and used as evidence. Things written in the past can also come back to be used years down the track (if they’re relevant). Social media evidence is often used along with other evidence and may influence decisions made by the court.
It is important to be aware of the consequences that a post may have.
But back to the ambiguous emoji situation. So how does a court determine what someone meant when they used an emoji? Well, the court will often rely on other evidence and the cross examination of both parties to determine what a person actually meant when sending a message, or using an emoji.
With time the decisions handed down in relation to such matters will become precedent for determining future disputes of such a nature. In the meantime, it is up to your solicitor to present to the court an argument as to what was actually meant in the context of the social media post.
If you have a family law matter and are feeling a bit : “?”about the situation we recommend you contact a family lawyer to discuss your matter and potential solutions.
Linda Kaczmarek is a paralegal in our Canberra Office