Can you go to jail for using an emoji?

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(Credit: Associated Press)

Nearly everyone is familiar with emoji, those popular icons that appear in text messages, emails and social media platforms. Emoji are often used as lighthearted adjuncts to text, or to soften the blow of a message.

Emoji can be viewed as overly simplistic in some contexts. For example, government officials were questioned when Foreign Minister Julie Bishop conducted an interview using just emoji, and described Russian President Vladmir Putin using an angry face.

A 2017 study found that use of emoji in work emails reduced perceptions of competence.

But emoji can be taken very seriously in the context of the law. The use of emoji has challenged lawyers, judges, and lawmakers in several countries. In a legal context, emoji are increasingly recognised not as joke or ornament, but as a legitimate form of literacy.

Making a criminal threat via emoji

Perhaps the most troubling use of emoji has come through their use in interpersonal messages where it is unclear whether they modify or amplify a prima facie criminal threat.

In New Zealand, a judge considered the role of emoji in a Facebook message sent by a man to his ex-partner. The man wrote, “you’re going to get it” followed by an aeroplane emoji.

Concluding that the message and emoji generally conveyed that the defendant was “coming to get” his ex-partner, the judge sentenced the accused to 8 months jail on a charge of stalking.

In 2016, a court in France convicted a young man of threatening his ex-girlfriend through a text message sent by mobile phone. The court found that the inclusion of a gun emoji meant that the message amounted to a “death threat in the form of an image”. The court sentenced the defendant to six months’ imprisonment and imposed a €1,000 fine.

The issue has also arisen in several cases in the US. In Virginia in 2015 a high school student was charged with computer harassment and threatening school staff. She had posted several messages to her Instagram account, combining text with emoji (a gun, a knife and a bomb).

The student claimed that she had never intended to make a threat and that the posts had been a joke.

In the same year, a 17-year-old in New York was charged with making a terrorist threat on his Facebook page after posting a policeman emoji, and three guns pointing towards it.

The prosecutor alleged that the message constituted a clear threat to police due to several factors:

• identification of a class of victim (police)

• repeated use of the gun emoji

• placement of the emoji weapons close to the emoji of the officer’s head

• the fact that other violent messages had been posted by the student earlier the same evening.

However, a grand jury failed to indict the defendant, at least in part due to concerns about whether the post really demonstrated criminal intent.

Liability in other threat cases has been more readily established. A high school student was convicted of making a criminal threat after she sent a series of tweets including a variety of emoji weapons.

Her claim that the tweets were meant to be a joke was unsuccessful.

Perhaps the high point of emoji liability occurred in a case in Spartanburg County, South Carolina. The defendants, who had previously physically attacked the victim, sent him a message comprising only emoji: a fist, followed by a pointed finger, followed by an ambulance.

They were subsequently arrested for stalking. And what exactly was the threat contained in their message? That the victim would be beaten (fist) leading to (pointed finger) hospitalisation (ambulance).

It is perhaps not surprising that those convicted of issuing criminal threats via emoji have all been relatively young; after all, many studies identify those under 30 as the most prolific digital communicators.

With claims that more than 9 million Australians use emoji, determining their meaning in a particular communication may increasingly emerge as a significant legal issue.

This story originally appeared in news.com.au.

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