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Put the Smiley Face Down and Step Away


Put the Smiley Face Down and Step Away

November 6, 2019
Seth L. Laver

This article originally appeared in Goldberg Segalla’s Professional Liability Matters. Read the issue here.

After her employer of 13 years granted Accounting Analyst Elaine Apatoff family medical leave for asthma in November 2010, someone reported seeing her shopping and carrying boxes during a move and her employer, thinking she was faking her illness, fired her.

But the gleeful emojis in text messages that Apatoff’s superiors exchanged about her departure showed they were happy to have any reason to fire her, she argued in a lawsuit alleging her termination violated the Family Medical Leave Act and law against discrimination. And the judge agreed.

Apatoff’s case isn’t unusual. Emojis are now showing up in everything from sexual-harassment claims to murder cases, including a 2017 trial in Massachusetts in which an accused killer was said to have texted a friend the nickname of his newly dead victim and an emoji with X’s for eyes—a detail illustrated in a footnote in the court record consisting only of the emoji.

The number of cases with emojis as evidence has increased each year since 2017 and is at nearly 50 so far in the first half of 2019, according to a Santa Clara University law professor who monitors court opinions. Meanwhile, attorneys have been left to argue over how to interpret the expressive little faces, which often are misunderstood and misused, and judges have been left to struggle with how or whether to admit them into evidence. While one judge might describe an emoji to jurors rather than allow them to see it for themselves, another might not even admit emojis as evidence.

Not a universal language

Emojis popping up in legal matters is a new wrinkle for attorneys and judges trained in the importance of words. Attorneys know the importance of words as well as their context and how others interpret them. But technology has simplified communication tools through email, texts and other means of electronic correspondence, and in many ways that has created problems.

As yet no court guidelines exist on how to approach emojis. Like many developing areas of the law, particularly when it comes to technology, attorneys may have to wait for develop further before the law is defined. Based upon the cases reported to date, however, there are some notable takeaways.

Emojis are most prevalent in sexual harassment and criminal cases. They’re found in workplace lawsuits, too. The District Court of New Jersey recently denied summary judgment to Apatoff’s employer. The court also gave guidance on the criteria for barring expert medical testimony in denying the defendants’ motion to bar this testimony.

Reportedly, there are more than 2,800 emojis ranging from expressions, to activities, to food, and games. But many of these emojis are easy to misinterpret without context. Among the most commonly misunderstood or misused emojis, according to life, are the one with X’s for eyes, which most people interpret as standing for someone who is dead or dying but actually means shock or astonishment.

Professional Liability Magazine, a collaborative effort of Goldberg Segalla’s Management and Professional Liability Practice Group, examines the latest best practices, emerging developments, and influential court decisions impacting the defense of professional service providers. Read our latest issue here.