Emojis have been used to communicate emotions and feelings in a way that words often cannot. While sometimes ambiguous, their relevance has not been dismissed by the Courts. In 2015, a US citizen was charged for making a terrorist threat after making a Facebook status of gun emojis next to a policeman emoji. Since then, a number of Australian and international cases have considered the significance of emojis, ultimately confirming that they do have binding legal effect- in both civil and criminal matters.
Misleading and deceptive conduct
A string of emojis recently costs a couple in Israel $3,000 in damages for an apartment they did not rent. The Israeli judge ruled that the below message:
which was accompanied by other follow up messages containing positive emojis, misled the landlord into believing they had intention to lease the property.
The landlord subsequently took down the advertisement listing only to have the defendants pull out of the deal. The Court ruled that the couple misled the landlord by representing an intention to lease the property through a combination of positive emojis despite having no intention to enter into the lease, supporting the conclusion that the defendants acted in bad faith.
While this case has yet to be applied in Australia, domestic courts have nonetheless recognised the importance of emojis in providing the entire context of an agreement.
Last year in Re Nichol (2017) QSC 220, the Queensland Supreme Court ruled that an unsent text message titled “My Will” with a smiley face emoji was sufficient to be considered the last will and testament of a deceased man. The unsent message, saved into the phone’s drafts folder, purported to leave his property to his brother days before committing suicide. If not for the text message, the property would likely have been left to his wife and son.
The Court relied on s18(2) of the Succession Act 1981 (Qld) which is almost identical to section 8(2) of the NSW Act, providing:
“The document [that purports to state the testamentary intentions of a deceased person] forms: 1. The deceased person’s will- if the Court is satisfied that the person intended it to form his or her will”
The smiley face, along with specific instructions for burial, were considered to support the man’s positive intention to leave the property to his brother.
What will this mean?
Emojis can be shown to the judge or jury in their original form in NSW Courts and when considered within the context of the facts, may be pivotal in swaying the case. Thus, whilst emoji law has not been significantly developed in Australia, individuals should be wary of using them in situations surrounding legally binding contracts.