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.