You Can’t Send That!

Many of us use emoji in our texts, emails and message apps, but can they cause more harm than good? In this edition of the MLF we consider the rising use of the emoji, and when it might get you – or your staff – into hot water.

Emoji have become a convenient, fast and fun means of communication. Sending a laughing emoji to someone who has texted you a joke is an effective, quick response. Sending the love heart eyes emoji to your child or partner clearly communicates affection. Or when you’ve made a mistake, the face palm/forehead smacking emoji can say “I really messed up” much more successfully than a pleading apology.

But with every new form of communication comes the potential for legal consequences. Over the past few years we have begun to see the use of emoji as either the basis for litigation or conviction, and/or evidence in legal proceedings. In France in 2016, a young man was convicted of making criminal threats when he sent the handgun emoji in a text to his ex-girlfriend. The court held that use of the emoji was a “death threat in the form of an image” and the defendant received a six-month sentence and 1000 euro fine. In a Queensland Supreme Court decision last year, a saved, unsent text message containing a smiling emoji was held to constitute a valid will. And a 12-year-old girl in the US was charged with criminal threats for posting emoji on her Instagram account.

Perhaps of greatest concern for everyday emoji users is the lack of consistency of emoji interpretation. And of course, what an emoji looked like on my device when I sent it to you, may not be how it comes out on your device. As long-time contributing editor to New York magazine Adam Sternbergh writes, the “elasticity of meaning is a large part of the appeal and, perhaps, the genius of emoji. … These seemingly infantile cartoons are instantly recognizable, which makes them understandable even across linguistic barriers. Yet the implications of emoji—their secret meanings—are constantly in flux.”

So, are you saying what you think you are saying? And what are the consequences of getting it wrong?

Consider the following scenario: you are busy at work when a long term, friendly customer you know really well responds to an automated ‘you are overdue’ sms with the following: This loyal customer is well known to you as a bit of a larrikin, and you want to avoid making them feel they are being chastised for having an outstanding bill, so you might respond with:
With this emoji you are attempting to project an colloquial tone, conveying an understanding message that you appreciate that the customer is having a great holiday, probably drinking too many beers (as indicated by their use of the beer emoji) and enjoying themselves, and you amusingly refer to the ensuing hangover he will no doubt experience. You do this to humorously ‘keep the customer onside’ – but have you gone too far?

The emoji you have used has several meanings. Yes, it can mean ‘dizzy’, and it might be appropriate to use if you want to make a joke about someone perhaps having too many drinks, but it can also mean ‘x rated’. By using this emoji are you implying that the customer is engaging in possibly inappropriate – or even potentially illegal – activities? And that you want to see pictures of it? Have you just sexually harassed the storer?? Does it make a difference if the storer is a woman? Is it relevant whether or not you are the same gender as the storer? Or what their (or your) sexual identity is???

Perhaps more readily conceptual is the potential for workplace harassment via emoji. Imagine as a boss you send what you perceive as a harmless text with the following emoji to a work colleague who is heading off on a holiday:

This emoji can mean whistling – and in this context you might use it to indicate “ha, not me!!” – but it can also mean kissing. It goes without saying that send a kissing emoji to a work colleague might be interpreted as unwelcome and uninvited inappropriate attention, and hence could be grounds for a harassment claim.

Emoji use can also form grounds of a defamation action. Imagine you and your staff had a work Christmas party at a Thai restaurant. The following day, you may send a (intended to be friendly) message to an employee who had been visibly impacted by a particularly spicy dish:

Although you may think you are enjoying a joke about the amount of water the staff member had to quickly consume in response to the chilli they ingested, this emoji can also mean a person is affected by drugs. Have you just accused the staff member of taking recreational drugs, and is this therefore defamation? Plus, any emoji with a tongue sticking out is probably best avoided in a work context for any number of reasons.

And finally, but perhaps less obvious, are the dangers that arise from using emoji that have been appropriated and employed in ways that are not at all obvious to those who are not frequent emoji users. Seemingly innoxiously emoji, including the eggplant, avocado, water droplets, the peach (particularly when used with certain other emoji), the rocket, and numerous other combinations of ostensibly harmless emoji may be sending a very different message to the one you think you are articulating!

What should you do?
Every workplace should have a policy on sexual harassment, bully and other unacceptable workplace behaviours. It should be reviewed to ensure it is broadly worded and would capture unacceptable, threatening or harassing emoji activity and behaviour. Employees should be regularly reminded of all workplace policies.

More specifically, you may elect to be prescriptive about emoji use in our business. Some workplaces may elect to ban the use of emoji by staff when communicating with other staff, customers or the public. Others may specify a list of ‘usable’ emoji which staff may employ in workplace communications. Broader still, a workplace may simply allow use of all and any ‘appropriate’ emoji and focus instead on avoidance of specified behaviours ie harassment, defamation and so forth. As it is not technology specific, this last approach is the most flexible as it futureproofs the policy, allowing and anticipating the development of new technology without the need to constantly update the policy itself.

The approach you elect to take will depend on many factors, including how comfortable you are with the medium, the age and tech-savviness of staff, and profile of your target market and customer base.

Don’t panic!
Like all new technology, it is best to seek information and education, and delay using it until you are confident that you understand it. And although emoji use is certainly on the rise, electing not to use emoji in your business communications is unlikely to impact on your competitiveness in the self storage market.

As always, if you have any questions please do not hesitate to contact the association on legal@selfstorage.com.au