Think before you emoji

April 1st, 2017

By Tshepo Confidence Mashile

The history of emoji (or emojis, if you prefer; either plural form is correct) is short but interesting. In 1982, Scott Fahlman, a computer scientist at Carnegie Mellon University, was frustrated by the limitations of the online bulletin board he and his colleagues were using. The problem? The medium only supported text (the ASCII symbols on the computer terminals of the day), and thus did not always convey the emotional intent of posted messages. Jokes were not landing. Sarcasm and irony flew over heads.

Consequently, Fahlman suggested using what have come to be called emoticons (emotion + icon = emoticon), groupings of ASCII text symbols and punctuation marks that work as a humour or emotional signal. And so adding a colon-dash-close parenthesis (:-)) became the joke marker known as the ‘smiley’ (SE Fahlman ‘Smiley Lore’, accessed 6-3-2017).

The idea soon exploded with the emergence of text messaging. The emotional shorthand enriched the language of a very restricted medium. In Japan in 1993, the emoticon took on an entirely different life with the creation of stylized picture versions. These emoji (Japanese for picture + letter) created a new pictograph language. This language now includes, according to communication and linguistics firm Idibon, nearly 1 300 images (L Reaper ‘Can emojis be used as evidence in courts?’, accessed 23-2-2017).

Emoji are the language of our online era, the thumbs-up to a question, the wink to our wit. They are a splash of color in black and white communication, conveying things mere words often cannot. We send emoji to improve on, even expand, our words and bring emotion – affection, frustration, love, anger – to the conversation. Now, like the tweets, posts, and texts that are a crucial part of the way we communicate today, emoji, and their brethren emoticons, have finally gotten their due in court. And like everything we love online, it’s complicated, kind of. (J Greenberg ‘That 😉 you type can and will be used against you in a court of law’, accessed 23-2-2017.)

Although South African courts are yet to be confronted with the use of emoji and emoticons as evidence, this aspect has precedent in the international community.

International cases dealing with use of emoji and emoticons by suspected criminals

The following are examples of cases that confronted international courts regarding the use of emoji and emoticons.

  • On 15 January 2016, Osiris Aristy (the defendant) opened up Facebook, posted a photo of a gun and wrote, ‘feel like katxhin a body right now’. Later that night, he added, ‘N***a run up on me, he gunna get blown down’ and followed that with an emoji of a police officer and three gun emoji pointing at it (? ? ? ?).
    After an hour, he posted another similar message.

Three days later, the 17-year-old defendant was arrested by the New York Police Department at his home in Brooklyn. According to a criminal complaint, the teen was charged with making a terroristic threat, along with charges of weapon and marijuana possession. His posts, the complaint argued, constituted a threat against police. They felt intimidated and harassed. They felt that the defendant had caused informants and other New York City police officers to fear for their safety, for public safety, and to suffer alarm and annoyance.

A grand jury decided against indicting the defendant, on charges that he threatened to kill police. The prosecutor who presented the case to the grand jury reported that the panel declined to indict the defendant on the terrorist-threat charge (Greenberg (op cit)).

  • In Fairfax, Virginia, a 12-year-old girl faced criminal charges for using gun, bomb, and knife emoji in an Instagram post. It read in part:

Killing ? ‘meet me in the library Tuesday’ ? ? ?

On 14 December 2015, a resource officer at Lanier Middle School in Fairfax was alerted to the girl’s post. The officer began interviewing students and sent an emergency request to obtain the IP address of the user associated with the Instagram account. The investigation led to the 12-year-old, who was also a student at Lanier. The girl admitted to authorities that she published the posts in question under the name of another student and was charged with threatening the school and computer harassment.

The threat was regarded as ‘not credible’, according to a spokesman for Fairfax County schools. While a motive was not shared, the girl’s mother said the Instagram posts were responses to bullying. The girl was scheduled to appear in juvenile court on these charges and it is not clear whether the case had been resolved already or not (Greenberg (op cit)).

  • In England, Justice Peter Jackson sitting in the Queen Elizabeth II Law Courts, Liverpool, in the Family court in the matter of Lancashire County Council v M & Ors (Rev 1) [2016] EWFC 9 included a smiley face emoji in an official court judgment involving two troubled children. It is thought to be the first time that a High Court document has adopted an electronic communication symbol.

Justice Jackson made his ruling in the High Court family case in which a recent white British Muslim convert was thought to have tried to take four children – the brother and sister and two much younger children of whom he is the natural father – to Syria.

The man is now serving an 18 year prison sentence after being convicted in a criminal court in July 2016 for firearms offences. The family were stopped in Istanbul and sent back to Lancashire, where the brother and sister were taken into foster care.

The judge used the emoji to explain why he thought the children’s mother had been duped into travelling to Turkey, rather than being complicit in the plot. He said police had misinterpreted a message asking a relative to look after the family pets.

Justice Jackson said in his judgment: ‘The mother left a message in the caravan for the father’s sister, who I will call the aunt. It told her how to look after the family’s pets. The message said that the family would be back on 3 August. It has a ☺ beside the date. After the family left, the police searched the caravan. They found the message and say that the ☺ is winking, meaning that the mother knew they wouldn’t be coming back. I don’t agree that the ☺ is winking. It is just a ☺. The police are wrong about that, and anyhow they didn’t find anything else when they searched the caravan.’

  • Emoticons landed in the United State (US) Supreme Court in Elonis v United States 575 US (2015).

Elonis was in the process of divorce and made a number of public Facebook posts.

He posted the script of a sketch comedy sketch by ‘The Whitest Kids U’ Know’, which originally referenced saying ‘I want to kill the President of the United States’, replacing the president with his wife:

‘Did you know that it’s illegal for me to say I want to kill my wife?

It’s illegal.

It’s indirect criminal contempt.

It’s one of the only sentences that I’m not allowed to say.

Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife… .’

Elonis ended the post with the statement: ‘Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?’

At trial, his lawyers argued that the tongue-out emoticon (:-P) signalled that he was joking or engaging in hyperbole just meant to shock. The lawyers asked, unsuccessfully, for a jury instruction that required intent to be considered as part of a ‘true threat’. (Jury instructions are the set of legal rules that jurors ought to follow when deciding a case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury. They are often the subject of discussion of the case, how they will decide who is guilty, and are given by the judge in order to make sure their interests are represented and nothing prejudicial is said.)

In its June 2015 opinion, the Supreme Court disagreed with the trial judge’s decision to deny the instruction, and remanded the case to the lower courts. The Supreme Court did not have to address the question of the emoticon directly, but were clear that information related to the mental state of the accused threat-maker was relevant information for the jury.

  • Emoticons popped yet again in the courts when a school administrator in Michigan filed suit after being fired. The suit cited multiple wrongdoings, one of the biggest of which was a defamation claim against a co-worker who had posted anonymously on a message board. The case has bounced back and forth between an arbitrator and the courts, but on the issue of defamation, an Appeals Court addressed the issue of the tongue-out emoticon as a signal of sarcasm. The court quoted an earlier case, Gus Ghanam v John Does (No. 312201, Macomb Circuit Court, LC No. 2012-001739-CZ):

‘The joking, hostile, and sarcastic manner of the comments, the use of an emoticon showing someone sticking their tongue out [:-P] … were made facetiously and with the intent to ridicule, criticise, and denigrate plaintiff rather than to assert knowledge of actual facts.’

Emoji and emoticons in South African criminal law and courts

Although the interpretation of the meaning of emoji or emoticons used in an short message service (SMS), e-mail, or a social media post in order to determine the criminal state of mind or the criminal intention of a suspect is yet to confront South African criminal courts, it is clear that the international legal communities have long dealt with this issue.

South Africa, however, does not fall short of authority dealing with the admissibility of documents from an electronic source, whether e-mails, fax, SMS, or social media posts. Same is regulated by the Electronic Communications and Transactions Act 25 of 2002 (the ECTA).

The ECTA clearly provides the necessary peremptory requirements that need to be met before such data messages or electronic documents will be admitted as evidence before a court. Briefly, the identification of the instrument on which the electronic document was received, the originator, addressor, recipient/addressee, all need to be verified under oath. Compliance with the above requirements set out in the ECTA is thus essential for any data message to be admitted to court.

According to s 14 the data message meets the legal requirements of being presented or retained in its original form if –

  • the integrity of the information from the time it was first generated in its final form as a data message has passed an assessment, on whether the information has remained complete and unaltered in the purpose for which information was generated, with having regard for all circumstances; and
  • that the information is capable of being displayed or produced to the person to whom it is to be presented.

The above is read together with s 14(2)(a) to (c) of the ECTA.

As with any other evidence, and as seen in S v Agliotti 2011 (2) SACR 437 (GSJ), a subpoena is needed to access an individual’s cell phone records. The regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (more popularly known as RICA) has been put in place to specifically make it easier to connect a cell phone account with a specific individual.


Whether it’s a ?, ?, ?, or a 🙂 it is clear that the courts can draw inference from these in determining the criminal state of mind or the intention of a suspect at the time a crime was committed.

Tshepo Confidence Mashile LLB (UL) is an attorney at Mkhonto and Ngwenya in Pretoria.

This article was first published in De Rebus in 2017 (April) DR 16.