Facing trial 😊

Meanwhile, in an Israeli small claims court, a landlord is suing a prospective tenant for pulling out of a rental agreement, and the verdict is in:

“This is the place to refer once again to those graphic symbols (icons) sent by Defendant 2 to the Plaintiff. As stated, they do not, under the circumstances, indicate that the negotiations between the parties have matured into a binding agreement. However, the sent symbols support the conclusion that the defendants acted in bad faith. Indeed, this negotiation’s parties’ ways of expression may take on different forms, and today, in modern times, the use of the “emoji” icons may also have a meaning that indicates the good faith of the side to the negotiations. The text message sent by Defendant 2 on June 5, 2016, was accompanied by quite a few symbols, as mentioned. These included a “smiley”, a bottle of champagne, dancing figures and more. These icons convey great optimism. Although this message did not constitute a binding contract between the parties, this message naturally led to the Plaintiff’s great reliance on the defendants’ desire to rent his apartment.

And so, by virtue of the emojis in the following text message – one of which is a chipmunk

“Good morning 😊  we want the house 💃🏻👯‍✌️☄️🐿️🍾  just need to go over the details …When suits you?”

– the judge found in favour of the landlord and awarded him 8,000 shekels to compensate for lost income.

The case, in 2017, excited a lot of legal comment, as one might imagine. Some agree with the judge that the smiley, in particular, helps to “convey to the other side that everything is in order” when it in fact is not. Others, such as the legal scholars Gabriella Ziccarelli and Eric Goldman, disagree, pointing out that “emojis are frequently used as emotional supplements to preceding words or sometimes even used as a punctuation substitute”, so cannot be relied upon as the court suggests. But nearly everyone accepts one thing – that the emojis cannot simply be overlooked. As Ziccarelli and Goldman say: “We can’t just consider the text and ignore the emojis … Because we must assume the prospective tenant included them for a reason, how do the emojis modify or supplement the initial text message’s words?”

Their discussion of that topic runs to considerable length, even theorising as to why the tenant might have used the “double bunny girls” emoji instead of the “single bunny girl” variant. (Even they are defeated by the chipmunk, however.) Elsewhere, in an extensive article on Slate, Amanda Hess describes numerous cases in which the courts have attempted to decode non-verbal messaging, including one in which “an anonymous comment posted to an online message board that appeared to accuse a city worker of corruption was negated by the inclusion of a tongue-out emoji”.

The confusion that even well-known emojis have caused in these cases is perhaps warning enough never to try to use them in headlines (not that there’s much call for that on a broadsheet). And that’s before you get to the confusing ones: the emoji of a person blowing hard through their nose – 😤 – is widely interpreted in the west as signifying anger, whereas in many parts of Asia it is seen as expressing pride or dominance: a bull-snort of power, drawing from manga iconography. Its official name is “Face with Look of Triumph“. Emojis are far more compact than words, but – probably for that reason – far more ambiguous.

And another lesson for editors is, once again, how grindingly literal a court can be about anything – anything – you might publish. We have previously discussed instances in which a judge released a criminal 10 years early because of a typo in a document – in the full knowledge that it was a typo – and where a biker was given only a year in jail for GBH because mistakes in the drafting of the law made it impossible to pass any other sentence. The judicial system can be agonisingly prescriptivist and unimaginative: lawyers are trained to pursue meaning narrowly through thickets of poor drafting and make a limited determination of meaning based on what was actually said, even contrary to evidence of intent. Ambiguity is cute in linguistics, but not in court, and it’s wise to edit with that in mind.

Get your rebuttal in first

It doesn’t happen all the time. But every now and then, the BBC launches a major news investigation on its website, and then stops it after three paragraphs. Like this:

That piece is approaching 3,000 words long, peppered with graphs and in-depth analysis boxes, but the rebuttal comes so high up in the story that you’re inclined to stop reading there and then. And the same is true here:

In that piece, the contradiction comes after 75 words, even though there are another 900 to read below it. And in this article, the government response comes so quickly it’s almost the first line of the story.

It’s not easy being the BBC. Like all Ofcom-regulated broadcasters, it has to be scrupulously impartial; doubly so, because it is funded via public levy by the grace of the government. The news division also gets thrust into the unenviable role of refereeing the endless Fleet Street culture war, by choosing to follow up (or not) on newspaper allegations of racism, illegal immigration, tax evasion, “waste”, and a hundred other started hares. It has also had to walk an impossible line down the middle of Brexit, and has now endured three consecutive governments that have more or less openly threatened its status and future. As a result of all these pressures, current and historical, its style guide is agonisingly neutral, its correspondents are intensely scrutinised for bias, and it draws its conclusions more slowly than any other major news provider.*

This is quite a successful approach to adopt when reporting on allegations made by third parties, as is the case with the third story mentioned above. Report the accusation, report the rebuttal (straightaway, in this case), fill in readers on the background. What’s the truth? There is no need to decide: just hand back to the studio.

The trouble is, the first two pieces are not allegations made by third parties: they’re allegations made by the BBC itself. The first is an online special under the general banner of the news division, the second is a companion piece to an edition of Panorama.

Yet it’s as though the he-said-she-said impartiality has become so ingrained that it is introduced even to a self-generated exposé – just as the corporation sometimes quotes its own correspondents as though they worked for someone else. But if you’ve done an original investigation, you ether believe in it or you don’t. You can’t distance yourself from your own allegations. Investigations aren’t “balanced”: they seek the truth on a particular issue and draw definite conclusions. Otherwise, what’s the point?

*For example, two days after the Nashville bombing, the BBC’s headline was “Nashville explosion ‘probably suicide bombing'”. The Mail’s headline the same day was: “Mother, 29, given TWO free homes worth $409K by ‘Nashville bomber’, 63, says she had no idea he signed property over to her a month ago – as feds probe if he blew himself up at AT&T building because he feared 5G is spying on Americans”.