Lawyers in a Canadian courtroom can call on expert witnesses to explain concepts such as blood spatter, blunt-force injuries, handwriting patterns and handgun residue.

So why not add an expert in smiley faces to the mix?

A new paper recommends establishing guidelines for court-approved “emoji specialists,” who would serve as expert witnesses capable of explaining the nuances of a rapidly growing, often difficult-to-define language based on cartoon faces and objects.

The paper, titled “The Emoji Factor: Humanizing the Emerging Law of Digital Speech,” delves into several foreign legal cases in which courtrooms have been forced to tackle the slippery meaning behind emojis, in an effort to address a medium that is becoming increasingly prominent in society.

“There are no rules here,” co-author and adjunct professor Elizabeth Kirley, of York University’s Osgoode Hall Law School, told by phone. “It’s an emerging area of law and judges really struggle with this.”

Kirley, who is on leave from Deakin Law School in Australia, co-authored the paper with Deakin professor Marilyn McMahon. It will be published in the April issue of the Tennessee Law Review.

Kirley and McMahon point out that many emojis have entirely different meanings depending on the context and the social circles in which a person operates. Not only can these definitions be slippery, but many of them would not be obvious to everyone on a jury of individuals with different backgrounds.

A flame emoji, for instance, might be used to say something is “lit” (youth slang for “exciting”), or it could indicate intent in an arson case. Even seemingly innocuous items, such as the eggplant and peach emojis, can take on entirely different meanings when used in the context of a romantic exchange.

Other emojis can look entirely different depending on whether the user is employing them on an Apple, Google, Microsoft or Facebook platform. The gun emoji, for instance, looks like a real gun on most platforms, but was changed on Apple devices in 2016 to look like a squirt gun. The dagger emoji also varies in potentially significant ways from platform to platform, in that the tip of the blade isn’t consistently pointed the same way.

“There is no lexicon. We don’t have a dictionary,” Kirley said. That’s why she’s recommending experts to advise the courts on such matters. “The courts need guidance on this because you have to be so careful.”

She said experts would also help with cases in which the significance of the text messages are called into question, in the event a defence lawyer might say that an emoji was a “joke” or was interpreted the wrong way.

“The exuberant childishness of emoji(s) tends to mask the harm… they can inflict,” Kirley and McMahon write in their paper.

Problematic cases

Kirley and McMahon examine several problematic emoji-related cases in their paper, including one in New Zealand where a judge professed to have no idea what an emoji was. The case involved a text message sent by an angry man to his ex-partner, in which he wrote: “You’re going to f***ing get it,” with an airplane emoji at the end of the message. The judge ultimately took the message as a threat and handed down a jail sentence for stalking.

Kirley says it’s cases such as this one that show the value of an expert witness who is “educated enough in the interdisciplinary approach to this topic.” That education might include a linguistics background, as well as strong knowledge of slang and common use of emojis on social media, she said, “just to try and assist the court to read the intention behind these little non-verbal communications.”

Another case still before the courts in Virginia is that of a then-12-year-old student in Fairfax, Va. The student was charged with computer harassment and threatening school personnel, after posting a potentially threatening series of messages on Instagram in 2015. The first message said “Killing,” followed by a gun. The second said “Meet me in the library Tuesday,” followed by a gun, a knife and a bomb emoji.

“That case illustrates how placement of emoji in sequence, the context of the message, and the texter’s choice of image can all challenge more conventional evidentiary standards,” Kirley and McMahon wrote.

They also cited two other cases in which the order of the emojis appeared to convey a specific threat. One case from New York resulted in a teen being charged with making a terrorist threat, based on a Facebook post showing a policeman emoji followed by a gun emoji. Another case from South Carolina interpreted a fist, a pointing finger and an ambulance as a threat to beat someone severely. However, neither case ended in a conviction.

“Those cases illustrate the problems confronting courts trying to decipher the significance of emoji(s) in threat cases,” Kirley and McMahon wrote.

The paper’s authors point out that emojis can have an impact in civil court as well. In Israel, for instance, a judge ruled in favour of a landlord who sued two potential tenants over a series of text messages that seemed to suggest they wanted to rent his property. The potential tenants had texted him celebratory emojis such as a champagne bottle, a woman dancing and several smiley faces, then backed out of what the landlord assumed was an agreement to sign a contract. The judge ultimately ruled that the couple “acted in bad faith.”

Emojis and the future of law

In addition to establishing experts in the emoji field, Kirley and McMahon suggest creating a “special court” for dealing with emojis and other emerging forms of communications, such as GIFs and memes. They suggest this special court might operate “similar to those currently providing tailored conflict resolution in areas such as mental health, intellectual property, Indigenous and juvenile justice law.”

Kirley says more work still needs to be done to define how courts around the world can best address the ever-shifting meanings of emojis. However, she hopes her paper will spur that conversation toward workable solutions that can keep up with the changing times.

“Other disciplines are moving ahead,” Kirley said. “How do we encourage innovation, but protect the rule of law?”